Fair Use under Copyright Law

The fair use doctrine is one of the essential legal principles used under copyright law. The fair use doctrine is an exception to the exclusive right given to the copyright owners. It allows people to use copyrighted material without the copyright owner’s permission, but the use should be limited.

This doctrine plays an essential role as it balances the rights of creators and the public to use and access copyrighted works. So, under this doctrine, specific uses may be considered fair, and that use will not infringe on the copyright owner’s rights.

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This article explores the concept of fair use under copyright law, outlining the four critical factors used to determine its application.

Four Critical Factors in Determining Fair Use

The following four factors are used to evaluate whether a particular usage is regarded to be a fair use or not.

1. The Purpose and Character of the Use

The first factor of the fair use doctrine is the purpose and character of the copyrighted material’s use. When the usage is non-commercial, educational, scientific, or historical, the use may be deemed fair use by the courts since copyright promotes research, scholarship, education, and commentary. Courts will examine whether a use is transformative or gives the original copyrighted work new meaning or a new message. This is done while also evaluating the purpose and nature of the usage.

For instance, using an image from a history book for academic commentary would be allowed under fair use. However, using the same copyrighted photo to market a product would not be considered fair use.

In the case of Goldsmith vs Andy Warhol Foundation, the central issue was whether Andy Warhol’s use of photographer Lynn Goldsmith’s portrait of Prince constituted fair use under copyright law. The court focused on the purpose and character of the use, determining that Warhol’s work lacked sufficient transformative elements. In a majority decision, the court ruled in favour of Goldsmith, stating that Warhol’s use did not meet the criteria for fair use, emphasising the commercial nature and shared purpose between the original photograph and the derived work.

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2. The Nature of the Copyrighted Work

The nature of the copyrighted material used is the second factor under the fair use doctrine. It is more probable that the content copied is protected by fair use if it is taken from a factual work, such as a biography; yet, if it is taken from a fictitious work, such as a movie, it is less likely to be protected. In addition, the court considers whether the work has been published or not. Compared to published works, the scope of fair use is typically more constrained for unpublished works.

Concerning unpublished works, the copyright law also recognises the author’s right to manage the first public display of their work. To protect the author’s freedom to determine when and how the work is made available, the fact that a work is unpublished counts against a determination of fair use. Fair use aims to balance the rights of those who own intellectual property and the public’s freedom to access and use it. The courts often give the author’s authority over their work more weight when it comes to unpublished works.

In the case of Salinger vs Random House, Inc., Ian Hamilton, a biographer, tried to write a biography about J.D. Salinger, the famous author of “The Catcher in the Rye.” Salinger’s letters were stored in a university library, and Hamilton could read them. But Salinger didn’t give permission to print or copy these letters.

In Hamilton’s view, using the letters to create an academic biography and gain insight into Salinger’s life and work was fair use. The court rejected Hamilton’s claim, which determined that his unauthorised paraphrase of the letters did not meet the criteria for fair use.

The court based its decision on the letters’ nature as unpublished works and the possible damage it may do to the copyright holder’s capacity to manage the work’s initial public appearance. The court determined that Salinger had the authority to select when and how his unpublished letters would be made public. Hence, the unpublished status of the letters counted against a finding of fair use in this case.

3. The Amount and Substantiality of the Portion Taken

The extent of the original work used by the defendant is a key consideration when applying the third factor of the fair use doctrine. Fair use analysis can be influenced by how big or tiny the section is, such as a single phrase from a book, a five-second segment from a movie, or an entire chapter or complete film. The importance of the copied content to the original work is also considered since it affects the copyrighted work’s market value and potential derivatives. Courts assess each circumstance separately to establish the fairness of the usage based on various subjective elements that change from case to case.

In the case of Harper and Row vs Nation Enterprise, the court determined that copying 300 words out of a 20,000-word manuscript, or just 0.15% of the entire manuscript, constituted copyright infringement because those 300 words were the book’s core.

However, in the case of Google LLC vs Oracle America, Inc., the court determined that the code Google copied was just 0.4% of the entire Java SE platform and was not very substantial.

4. Effect of the Use on the Potential Market

The implications of the usage on the prospective market for the copied work are the fourth factor under the fair use doctrine. Therefore, if copyrighted work reduces demand for the original work, it is not fair use.

Like the case discussed above, Harper and Row vs Nation Enterprise, the court determined that copying 300 words out of 20,000 did not constitute fair use because it was the book’s core. Additionally, because it was the book’s core, the sales of the original manuscript would suffer, so it did not qualify as fair use.

Case Law

In the case of the Chancellor, Masters & Scholars of the University of Oxford & Ors. vs Rameshwari Photocopy Services & Anr, also known as the “DU photocopy case,” the University of Oxford and others filed a case for copyright infringement against Rameshwari Photocopy Service.

The photocopy shop on the Delhi School of Economics premises in Delhi University’s North Campus was accused of distributing copied portions of the publishers’ books without obtaining the appropriate licenses.

During the legal proceedings, Rameshwari Photocopy Service argued that their activities fell within the bounds of fair use as the reproduced materials were being used for educational purposes. They contended that their role was to assist students in accessing necessary course materials and that such usage should not be considered copyright infringement.

The Delhi High Court, in its landmark judgment, recognised the photocopy shop’s defence, emphasising that the preparation of materials for educational purposes carried out during instruction, did not violate the rights of the copyright holders. The court’s decision favouring Rameshwari Photocopy Service upheld their stance that their activities were permissible under the fair use principle.

It is worth noting that Rameshwari Photocopy Service played a pivotal role as the defendant, asserting their right to distribute photocopies of copyrighted materials for educational purposes without infringing on the publishers’ copyrights. The court’s ruling ultimately affirmed the photocopy shop’s position and highlighted the importance of fair use in educational settings.


The fair use doctrine serves as an essential aspect of copyright law by providing a limited exception to the exclusive rights of copyright holders. It allows for using copyrighted material without permission in certain circumstances, striking a balance between the interests of creators and the public’s right to access and use copyrighted works.

Determining fair use involves considering factors such as the purpose and character of the use, the nature of the copyrighted work, the amount used, and the impact on the market for the original work.

As fair use is a case-by-case analysis, there is no one-size-fits-all formula. Overall, the fair use doctrine encourages creativity, innovation, and the free flow of information while respecting the rights of copyright holders.

Gayatri Singh
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