Fair use, factor by factor
US courts weigh four factors, and none of them decides a case alone. The 2023 Warhol ruling changed how the first one reads.
Fair use is a defence, raised after someone accuses you of infringement. Section 107 of the US Copyright Act lists four factors a court must weigh. No single factor wins a case.
1. Purpose and character of the use
Courts ask whether the new use adds a further purpose or different character. Commentary, criticism, news reporting, teaching and research often qualify.
In Andy Warhol Foundation v. Goldsmith (2023), the Supreme Court narrowed this factor. Warhol's print added new meaning to Lynn Goldsmith's photograph, yet licensing it to a magazine served the same purpose as the photo: illustrating a story about Prince. The use was commercial and substitutive, so the factor weighed against the Foundation.
2. Nature of the copyrighted work
Using factual work leans towards fair use. Using highly creative or unpublished work leans against it.
3. Amount and substantiality
Taking less helps, though a small portion can still be "the heart of the work". In Campbell v. Acuff-Rose (1994), the Court accepted that parody needs to take enough to conjure up the original.
4. Effect on the market
This factor asks whether the use replaces sales or licences of the original, including licensing markets the owner would plausibly enter. In Google v. Oracle (2021), the Court found that copying 11,500 lines of Java declaring code was fair use, partly because it did not displace Oracle's market.
A working checklist
- Write down your purpose before you use the material.
- Take only what that purpose needs.
- Credit the source. It does not create fair use, though it shows good faith.
- When the use is commercial and resembles the original's own market, ask for a licence.
This article is general information, not legal advice for your situation.