The Four Factors of Fair Use

As an intellectual property lawyer, Joshua Graubart often fields questions from artists like documentary filmmakers about how they can include video clips, images or songs in their projects without violating copyright law.

“Fair use is a four-factor balancing test, but there’s a joke among copyright lawyers that we have clients who think it’s a two-factor test: Do I want to use it, and do I want to pay?” says Graubart, of Romano Law. The punchline: “If the answer to the first question is yes and the second question is no, it’s fair use.”

Obviously, that’s not the rule. But predicting how a judge or jury will interpret the four factors in the fair use doctrine is not simple, either—even for lawyers. That’s why, when in doubt, Graubart says buy the license.

“If you’re sued, it will cost you tens of thousands of dollars for me to prove you didn’t have to buy a $2,000 license in the first place,” he says. “So maybe ask for a license if you think you can get one for a reasonable price, because it will be cheaper than defending a lawsuit.”

David Leichtman of Leichtman Law, who represents clients on both sides of music and photography disputes, says fair use is a defense to copyright infringement that considers four factors: the purpose of the use (such as commercial or nonprofit); the nature of the copyrighted work (fact or fiction, for example); how much of the original work is used; and the effect on the value or potential market for the original.

“The classic example would be if I write a book and then you write a book review and you include excerpts from the book to illustrate your review, you [may] use only as much as is necessary,” Leichtman says. “If you reprint my entire book, you took too much.”

Though the cases that make their way to court are often less straightforward, Leichtman says the recent U.S. Supreme Court decision in Andy Warhol Foundation v. Goldsmith goes a long way to clarify what is and is not fair use.

At issue was a portrait of Prince taken by famed photographer Lynn Goldsmith, which artist Andy Warhol then used to create 16 images. One of the images ran in Vanity Fair in 1984, for which the magazine paid Goldsmith a $400 licensing fee. After Prince died in 2016, the magazine paid the Warhol Foundation $10,250 for the use of a different image in the series, but did not pay Goldsmith. In a 7-2 decision, the Court said the photographer was entitled to copyright protection since the new use was both similar and commercial.

“We’re looking at the particular use,” Leichtman says of that first factor. “Goldsmith didn’t sue the Warhol foundation over the life-size silk screens sold on the art market. She sued that they licensed it to a magazine, which is the sweet spot of her own market where she does her business.”

Likewise, he explains, the court found Warhol’s work wasn’t sufficiently transformative to be protected because it wasn’t a commentary on Goldsmith’s work; he just used her photo as the raw material.

Graubart says people believe a lot of myths about fair use that he can quickly dispel—like that anything for non-profit use or under 30 seconds is OK. “It entirely depends on context,” he says. “The ones that are very clearly fair use are something along the lines of [being] clearly parodic. ‘I’m mocking this thing. I’m not using it to mock something else. I’m literally making fun of you.’”

For example, there was a case involving the book The Wind Done Gone, a retelling of Gone with the Wind from the perspective of slaves. The estate of Margaret Mitchell alleged copyright infringement. “They said, ‘We never would have given permission for this.’ The response was, ‘Yeah, that’s the point. This is core free speech. You never would have given permission for this.’”

Even a case that seems as clear as that now was muddy at the time. “It was a hugely important decision when it came down in 2000, because nobody was sure,” Graubart says.

“There’s a limit to how much a lawyer can tell you,” he adds. “I can tell you a best guess. In a lot of cases, I can make a good argument for fair use, but I could also make a good argument it’s infringing. I don’t know what the answer is going to be, so I can walk you through the factors. It’s not a clear area of law. A lot of them are on-a-knife’s-edge judgment calls.”

Leichtman boils it down to this: If you’re hanging something on your own wall, that’s one thing. If you’re engaging in commercial activity, then you should speak to a lawyer.