Fair Use in Copyright is a License to Steal

Fair Use in Copyright is a License to Steal

This Guide is for artists, writers, coders, and filmmakers to better understand how to lawfully borrow and steal others' copyrighted works. Footonotes have been omitted. To view the full article with footnotes, visit http://woodrobbins.com/wp-content/uploads/2015/06/fairuseprimer.pdf.


The story of who we are requires that media creators, documentary filmmakers, visual artists, journalists, and poets be allowed to borrow and steal from the work that came before.[1] This is why the fair use exception to the copyright scheme is so important. When correctly applied, the doctrine allows new creators to use, copy, and even exploit for profit discrete portions of copyrighted material without having to pay even a single dollar in licensing fees to the owner.[2] This white paper is designed to aid artists, writers, coders, and filmmakers to better understand the contours of the doctrine of fair use as it applies to moving pictures.

The Fair Use Legal Standard

The most significant exception to the copyright regime is the doctrine of “fair use.” In its most general terms, fair use is the non-exclusive right to copy and exploit copyright material for purposes of “criticism, comment, news reporting, teaching . . . scholarship, or research.”[1] If a use is found to be a fair use then, by definition, it does not infringe any other party’s copyright. Fair use is a “key part of the social bargain at the heart of copyright law,” which militates against the culturally stagnating effects of the copyright monopoly by granting to the non-copyright holder “opportunities to use copyrighted material when they are making something new that incorporates or depends on such material.”[2] Without such an exception, “the whole society may lose important expressions just because” the copyright holder acts in a way that is “arbitrary or greedy.”[3] Fair use helps the copyright regime strike the balance between rewarding the original artist’s efforts, and encouraging new artists to comment, critique, and build upon past creations.[4] Fair use is a concept, like copyright itself that evolves over time based upon developments in technology[5] and accepted standards in the community.


In order to determine whether any particular use of copyrighted material is a fair use, the courts will typically examine four factors: (1) the purpose and character of the use (often a test of whether the work has been “transformed”), (2) the “nature of the copyrighted work”; (3) the amount of the work used in “relation to the copyrighted work as a whole”; and (4) whether using the work damaged the “potential market for or value of the copyrighted work.”[6]


Element 1: Transformation

The first prong, pertaining to the “purpose and character” of the use is often described as a question of “transformation.” Transformation means that through comment, or criticism, the fair use changes the way we think about the original copyrighted work or presents to the public, as a matter of artistic or cultural value, new insight, new understanding, or a new articulable aesthetic. As the Supreme Court has held, the transformation prong “lies at the heart of the fair use doctrine[].”[1] The key to the transformation prong is that one must be able to articulate what the new insight or new aesthetic is. The more obvious the meaning of the transformative insight the stronger the claim for transformation.[2] This puts subtle, or artistic transformation at a distinct disadvantage when trying to claim fair use. Expressive intellectual criticism on the other hand permits the user to more easily justify her claim to fair use.

Thus the easiest way to make out a fair use argument is to simply make the comment or criticism about the copyrighted work overt. This is what the documentary film Expelled did. Expelled is a weakly-reasoned albeit well-funded documentary advocating for intelligent design. To make a point a about the American secular culture, Expelled notes that John Lennon’s song “Imagine” encapsulates the popular conception of religion as the source of social ills and that without its pernicious effects we might very well discover an earth-based utopia. The documentary plays some fifteen seconds of Lennon crooning “Nothing to kill or die for / And no religion too” as images of Stalin and the Cold War waft by.[3] The court found fair use here, in part because the commentary was overt and worked in sequence with the imagery to criticize “the naiveté of John Lennon’s views.”[4] The Court explained, while the filmmakers’ “reasons for using ‘Imagine’ in the movie and their ability to articulate those reasons ease the analysis,” more significantly, “much of the [filmmakers’] asserted purpose for excerpting the song is apparent from a viewing of the movie.”[5]

At the other polar end are artists who appropriate copyrighted work without having overtly articulated their comment or criticism. This is the most risky way to make out a fair use claim because non-verbal “aesthetic transformation” leaves too much opportunity for a particularly dull judge to “not get it.”

For example in Rogers v. Koons, 960 F.2d 301, 305 (2d Cir. 1992), Koons copied Art Rogers’s photograph of eight German Shepherd puppies to create a sculpture called String of Puppies.[6] Koons argued fair use and lost.[7] The Court was unpersuaded that one artist should be able to take copyrighted material “in toto” from another artist, taking “much more than would have been necessary” to make a satirical point.[8] Koon’s lack of overt commentary in the work, and his failure to articulate his cultural criticism even in auxiliary documentary seemed to have doomed his claim to fair use. The law has a poor capacity for conceiving of the subtely of non-language centric messages.

Fourteen years later, Koons found himself embroiled in another copyright infringement action. Battle-hardened, Koons seemed ready for the fight. In 2001, Jeff Koons appropriated a photograph of a pair of women donning Gucci sandals from Allure Magazine for his 10 foot by 14 foot photorealistic painting Niagara.[9] Niagara displays the dangling legs and feet of women, some in expensive Italian sandals, over a landscape of sweets and pastries in order to, in Koons’s words, “comment on the ways in which some of our most basic appetites-for food, play, and sex-are mediated by popular images.”[10] The Allure photographer, Andrea Blanch, sued Koons for copyright infringement and Koons defended, arguing fair use. In this case Koons won.[11]

Koons appears to have prevailed for multiple reasons. In large part Koons won this round because he was able to prove that Niagara transformed the Allure photo from shoe porn into a meditation of consumerist society.[12] Koons turned the Allure photo on its head, from an object that eroticized material goods into a critique of the culture of consumption. Blanch stands out as the rare case in which the Judge understood what the artist was trying to communicate despite the fact that the message was unverbalized.[13] But Blanch appears to be the exception rather than the rule.

Gaylord v. United States is another case involving visual art. [14] This one is more typical of the court’s difficulty with subtle unverbalized messaging. In Gaylord, the government commissioned the Korean War Memorial, a sculpture of nineteen, 7-foot tall stainless steel soldiers in a V formation in front of the Vietnam War Memorial on the Washington D.C. National Mall.

John Alli took a photograph of the soldiers in 1996 after a snowstorm as a gift for his father. In 2002 the U.S. Postal service licensed the photo from Alli and reproduced the photo in a 37 cent stamp commemorating the 50th anniversary of the armistice of the Korean War. But the Postal Service did not license the original sculpture from Gaylord. Gaylord sued. The Postal Service argued Fair Use. The Postal Service lost.

The Court correctly noted that under the first prong of the four-part test, it must “consider ‘whether the new work merely ‘supersede[s] the objects' of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”’[15] The Court further noted that “Although ‘transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.’”[16]

The lower court found that Gaylord’s “Column” was substantially transformed by the photo insofar as the “three-dimensional sculpture” was reduced to two dimensions, in “a surrealistic environment with snow and subdued lighting”; and found the stamp was further transformed from Alli’s photo “by making it even grayer, creating a nearly monochromatic image.”[17] But the Court of Appeal did not buy-into this “aesthetic transformation” argument. Instead, it held that because “the inquiry must focus on the purpose and character of the stamp,” and because both the stamp and the Column have the same purpose, “to honor veterans of the Korean War” there is no transformation.[18] The Court was unpersuaded by the Postal Service’s aesthetic transformation claims:

Although the stamp altered the appearance of The Column by adding snow and muting the color, these alterations do not impart a different character to the work. To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a “dream-like presence of ghostly figures.” Capturing The Column on a cold morning after a snowstorm-rather than on a warm sunny day-does not transform its character, meaning, or message. Nature's decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude.[19]

This case highlights the risk an artist takes when trying to invoke fair use without embedding in the finished work some clear, preferably verbal message as to how the appropriated work has been changed, transformed, or otherwise altered in order to advance a social commentary or critique (if not a critique of the copied work itself). Post-hoc justifications, as we saw in the Blanch case will sometimes work. But as the Gaylord case illustrates, they are risky, and depend in large part on the judge understanding the subtleties of message that sometimes operate in the expression of sheer aesthetics. Some judges get this. But many do not.

Element 2: Nature

The “nature” prong examines whether the copyrighted work is entirely fictional, or whether it simply captured some factual event. Factual material enjoys a lower level of protection. Artistic creations enjoy higher level of protection.

“The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.”[1] In other words, “this factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.”[2] Additionally, published works are more likely to qualify for fair use by subsequent users.[3] “For example, works such as original songs, motion pictures, and photographs taken for aesthetic purposes, are creative in nature and thus fit squarely within the core of copyright protection.”[4] But works such as news broadcasts and news video footage are more factual in nature and thus are more conducive to fair use.[5] This is the least important element in the outcome of a fair use inquiry.[6]

Element 3: Amount Used

Generally the amount used must not exceed the amount required to effectively make the critical, or aesthetic point. This factor evaluates both the quantity of the work taken and the quality and importance of the portion taken.[1]

Regarding the quantity, copying “may not be excused merely because it is insubstantial with respect to the infringing work.”[2] But if the amount used is substantial with respect to the infringing work, it is evidence of the value of the copyrighted work.[3] Regarding the qualitative nature of the work used, the court looks to see whether “the heart” of the copyrighted work is taken-in other words, whether the portion taken is the “most likely to be newsworthy and important in licensing serialization.”[4] “Finally, if the new user only copies as much as necessary for his or her intended use, this factor will not weigh against the new user.”[5] This element is less important than the first or fourth, and serves more as a supporting data point for the fourth factor (market impact) rather than a free standing element of independent value.[6]


Element 4: Market Impact

“The last . . . factor[], is the effect the use will have on the potential market for and value of the copyrighted works.”[1] We must “consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market for the original.”[2] As an empirical matter some courts, including the Supreme Court have suggested that “Copying a news broadcast may have a stronger claim to fair use than copying a motion picture’ because the potential market for copies of news broadcasts is not as great as that for copies of movies.”[3]

In the 1980s the Supreme Court called this last factor the “most important” factor.[4] But later, in the 1990s the Supreme Court signaled a change in direction, holding that the transformation factor, not the market impact factor, “lies at the heart” of the fair use analysis.[5] In the seminal Campbell case the Court also abandoned what was then-known as the Sony presumption that every “commercial” use of copyright material is “presumptively” unfair.[6] While some lower courts have heard and understood Campbell’s abandonment of Sony, a surprising number of other “lower courts continue[] to cite and apply that” now overruled “presumption.”[7] The Ninth Circuit, however has taken Campbell to heart and gone even further in finding, as a quasi-empirical matter that, “The more transformative the new work, the less likely the new work’s use of copyrighted materials will affect the market for the materials.”[8] But, lower court error aside, Campbell’s emphasis on transformation, a creative element which favors 1St Amendment values, over the fourth prong’s market concerns signals an evolution in the fair use doctrine away from property rights toward free speech rights. As one well-regarded practitioner has remarked, as of late, the transformation prong “ seems to be the key to the analysis.”[9] The most exhaustive empirical study available to date has found this to be true.[10]


Wholistic Analysis

There’s a certain amount of soft subjectivity involved in balancing these four factors, what the Supreme Court has called an “equitable rule of reason analysis to particular claims of infringement.”[1] This means that the courts are supposed to examine each case of infringement and fair use on a “case by case” basis, emphasizing and enlarging one of the four fair use factors in one case and deemphasizing and limiting the same factor in a different case “in light of the purposes of copyright.”[2]

Courts are also encouraged to wholistically examine the public policy of the copyright regime: “The fair use defense permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”[3] In other words the courts are encouraged to weigh Copyright’s competing values: the First Amendment values on the one hand that advance public culture and society through the marketplace of ideas and aesthetics, and Private Property values on the other hand that advance private interests which encourages and rewards the artist’s original creativity and encourages the artist to create more work. These values bleed into each other an in many ways amplify each other. The artist uses prior work found in the public culture as a resource for commentary,[4] and does so, at least in part due to the private rewards she believes will receive in the form of a copyright monopoly. The artists creativity in turn creates more work for the culture to enjoy and for other artists to use when that use is a fair use.

The Unspoken Fifth Element

In this vein, some courts have examined a factual question not specifically asked in the four prong test: does equivalent or nearly equivalent footage exist elsewhere that could be used in lieu of the copyright footage? We call this question of “uniqueness” the unspoken Fifth Element.[1] If the footage is unique and irreproducible, such as having captured an historical event, the court is more likely to permit its use under fair use.[2] On the other hand if the footage used without permission could be arguably replaced by other available footage, even if that alternative footage is not of equal quality, the court may conclude that the use of this particular footage was not necessary, strictly speaking, and may conclude its use is not fair.[3]

The reason why the Fifth Element is so important to the fair use inquiry is not because there is something about uniqueness for uniqueness sake that militates against the scope and power of copyright. Rather, the Fifth Element helps the courts to answer a more fundamental question of equity, one that lies at the heart of fair use: Why is it so vital for this material, and only this material, to be used here? If the party claiming fair use cannot offer a legitimate answer to this question, then it will begin to appear that the material in question was used for a whole host of improper reasons, such as; (1) the user was too dull to invent her own original expression; (2) the user was too lazy to bother to engage in the “drudgery” of “working up something fresh”;[4] (3) the user wanted to piggyback on the popularity or “entertainment value” of the material;[5] (4) the user sought to make easy money with minimal investment of time, energy, or capital by appropriating another’s work with an already built-in and proven revenue stream.[6] For reasons that should be obvious, none of these excuses advance the public interest[7] of enriching the culture through new creative or artistic expression and so as a matter of equity, none will ground a fair use defense.

But in those cases in which the appropriator has not failed to meet some or most of the other four elements, arguing that the material is unique or in limited supply can significantly bolster the user’s fair use position. Although there is no “Fifth Element” per se in the fair use statutory scheme, answering the question of why the user had to use this material is part of fair use’s larger “rule of reason,”[8] which seeks equity on a “case by case”[9] basis. To the extent the Fifth Element can help the court answer this question it becomes a key consideration in many fair use inquiries.