Fair use is another limitation on your rights in your music. But it is not as well defined as the limitations and exemptions discussed in earlier sections. Its purpose is to ensure that a copyright owner’s exclusive bundle of rights will not hinder the very creativity that the law was designed to foster. The doctrine recognizes that new works draw inspiration from older works and that productive use of older works promotes the progress of science, the arts, and literature. Fair use permits use of copyrighted material without permission where use is in the public interest. The law specifically mentions criticism, comment, news reporting, teaching, scholarship and research as exemplary fair uses, but there is no clear-cut-rule. Fair use is determined on a case-by-case basis. An activity may qualify in one instance as fair use, while it would be an infringing activity in another context.
The law sets out four factors to be used in determining whether a particular use is fair.
Under this factor, non-profit or educational uses and uses that transform the underlying material are more likely to be considered fair. Transformative uses might be considered fair even if they are commercial.
A good example of a transformative use is parody. A parody uses the original work in order to make fun of it. From court cases decided to date, several elements emerge. For a parody to be considered fair use:
It must comment on the original.
It should use only as much of the original material as is needed and not so much that the consumer will be confused or the commercial value of the original will be diluted.
It should not seek to replace the original in the market place.
In Campbell v. Acuff Rose Music, the owners of the copyright in Roy Orbison’s song, “Oh, Pretty Woman”, sued the rap group 2 Live Crew, claiming that the group’s parody song infringed their copyright by using the first line of the lyrics and the song’s opening bass riff. The Supreme Court found that because 2 Live Crew’s song added significant amounts of new material and criticized the underlying work, the use was transformative and qualified for fair use. The court reached this conclusion even though 2 Live Crew’s use was for commercial purposes.
Generally, creative works are given greater protection than factual works. For example, a song would receive more protection than software code. Also, if a work is unpublished, the author’s right of first publication is recognized. Yet a work’s unpublished nature does not necessarily preclude finding of fair use.
Under this factor, a court would examine what portion of the work was used and the significance of the used portion.
Adverse effect of the use or potential adverse effect tends to go against a finding of fair use.