The Copyright Act of 1976, 17 U.S.C. § 107, sets forth four, non-exclusive factors that
a court must consider in determining whether a particular use of a copyrighted work is a fair use.
[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
(1) Purpose and Character of Use
The first factor is the “heart of the fair use inquiry” and requires consideration of how the copied work was used. Cariou v. Prince, 714 F.3d 694, 705 (2 Cir. 2013) (citing Blanch v. Koons, 467 F.3d 244, 251 (2 Cir. 2006)). Although the copyright act instructs courts to look at the commercial nature of the use, the Supreme Court has made clear that commercial uses are not presumptively unfair. Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 584 (1994) (finding Congress “could not have intended” such a blanket rule).
As the Court has explained, “[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 471 U.S. at 562; see also Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 922 (2 Cir. 1994) (“The commercial/ nonprofit dichotomy concerns the unfairness that arises when a secondary user makes unauthorized use of copyrighted material to capture significant revenues as a direct consequence of copying the original work.”).
As a result, the crucial inquiry in the first factor is “whether the new work merely supersedes the original work, or instead adds something new with a further purpose or of a different character.” Brownmark, 682 F.3d at 693 (citing Campbell, 510 U.S. at 579, which defines a transformative work as one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message”). The Court observed that, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579.
Parody v Satire
Kienitz is correct that courts have been more willing to grant fair use protections to parodies (using a work in order to poke fun at or comment on the work itself) than to satires (using a work to poke fun at or comment on something else). See Campbell, 510 U.S. at 580-81 (“Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”)
The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. Instead, . . . to qualify as a fair use, a new work generally must alter the original with new expression, meaning or message. [The] original must be employed in the creation of new information, new aesthetics, new insights and understandings.
Cariou, 714 F.3d at 706 (citing Campbell, 510 U.S. at 577 and Harper & Row, 471 U.S. at 561).
The Court in Campbell explained that when there is little or no risk of market substitution, whether because of the large extent of transformation of the original work, the new work’s minimal distribution in the market, the small extent to which it borrows from the original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.
Campbell, 510 U.S. at 581 n.14
These considerations reference the essence of the four fair use factors. As discussed in conjunction with the fourth factor, the SFP shirts “have no demonstrative capacity to divert sales from the original” photograph. MasterCard Intern. Inc. v. Nader 2000 Primary Committee, Inc., 2004 WL 434404, *13 (S.D.N.Y. Mar. 8, 2004). As a result, “a showing of ‘the parody's critical relationship to the original’ is less vital in the fair use analysis.” Id. (quoting Campbell, 510 U.S. at 580 n.14).
(2) Nature of The Copyrighted Work
Courts generally consider two aspects of a copyrighted work in evaluating this factor: (1) whether the work is more creative or factual in nature, and (2) whether it is unpublished, in which case the right of first publication is implicated. Núñez v. Caribbean Intern. News Corp., 235 F.3d 18, 23 (1 Cir. 2000) (citing Harper & Row, 471 U.S. at 563-64). “
“[T]he more creative the work, the more protection it should be accorded from copying; correlatively, the more informational or functional the plaintiff’s work, the broader should be the scope of the fair use defense.”
With respect to the second aspect of the second factor, defendants’ use of Kienitz’s photograph did not usurp his right of first publication. Although the photograph never had been published in any book or public portfolio, it appears on the City of Madison website, on Mayor Soglin’s internet blog and on his Facebook page. Kienitz intended for Mayor Soglin to use the photograph publically as an official portrait and for any other non-commercial use. Núñez, 235 F.3d at 24 (noting pictures commissioned for very purpose of semi-public dissemination). With relevant considerations pointing both directions, I do not find that the factor addressing the nature of the work strongly favors either side. Therefore, I have attributed it little weight in the fair use analysis.
(3) Amount and Substantiality of Work Used
The third factor requires a court to examine the amount and substantiality of what was used in relation to the copyrighted work as a whole. Harper & Row, 471 U.S. at 564. It is both a qualitative and quantitative analysis. Campbell, 510 U.S. at 586; Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2 Cir. 2006). There is no per se rule against copying a work as a whole if it is necessary to the purpose and character of the use. Chicago Bd. of Educ., 354 F.3d at 629. The focus is not on how much of the work was taken but to what extent the protected elements were copied from the original. See Salinger v. Random House, Inc., 811 F.2d 90, 97 (2 Cir. 1987); 1 Art, Artifact, Architecture and Museum Law § 7.109.
See Bill Graham Archives, 448 F.3d at 613 (although thumbnail images of concert posters used entire copyrighted images, “the visual impact of their artistic expression is significantly limited because of their reduced size”).
In sum, this factor weighs in favor of fair use because the amount and substantiality of the photograph used by defendants was “reasonable in relation to the purpose of the copying.” Campbell, 510 U.S. at 587-88; see also Blanch, 467 F.3d at 258 (finding reasonable defendant’s choice to extract portions of copyrighted work with purpose of evoking “certain style of mass communication”).
(4) Effect of Defendants’ Use on the Market
The Supreme Court has stated that this factor is “the single most important element of fair use.” Harper & Row, 471 U.S. at 566. “Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.” Id. at 566-67, quoting 1 Nimmer, § 1.10[D] at 1-87; see also Stewart v. Abend, 495 U.S. 207, 238 (1990).
The question is whether the new work will be a market substitute for the copyrighted material. Campbell, 510 U.S. at 591. A court must consider “not only the extent of the 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. Id. at 590 (quoting 3 Nimmer § 13.05[A], at 13–102.61). “The less adverse impact on the owner, the less public benefit need be shown to sustain non-commercial fair use.” Rogers, 960 F.2d at 311-12.
If the new work substitutes for and is likely to reduce the demand for the copyrighted original, then it is not a fair use. Ty, Inc. v. Publications International Ltd., 292 F.3d 512, 518 (7 Cir. 2002)
Irony of Fair Use
In what may be a frustrating paradox to a copyright holder, the farther from his original purpose, character and audience a subsequent use deviates, the more likely this use will be deemed fair because it is anything but a substitute for the copyrighted creation.