Updated October 2026: We revised the discussion of the first fair use factor to reflect the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023), which held that adding new expression or meaning is not enough when a commercial use serves substantially the same purpose as the original, and corrected several smaller points.
FOUR FACTORS OF FAIR USE
Copyright law states that at least four factors should be taken into consideration when determining fair use:
- The purpose and character of the use
- The nature of the work
- The amount and substantiality of the portion used in relation to the work as a whole
- The effect of the use on the market or potential market for the original work
Being sued for copyright infringement can be a serious matter. Civil statutory damages can be as high as $150,000 per work infringed if you are found liable for willfully copying someone else’s work without permission.
However, there are certain affirmative defenses you can raise that would “excuse” the infringing activity. Perhaps the most common affirmative defense is “fair use,” in which you are able to use the copyrighted material without obtaining permission from the copyright holder.
Evaluating Fair Use
Section 107 of the Copyright Act lists four factors that a court should use in determining if someone’s use of a copyrighted work falls into fair use of the work.
1. Purpose And Character of the Use
Courts will consider the purpose and character of the use, including whether the use was commercial in nature or for nonprofit educational purposes.
If I own the copyright on a picture I took, and a business uses that picture in its advertising materials without my permission, this could be considered infringement with no fair use involved.
On the other hand, if a student uses the picture as part of a project for class, the student’s use is more likely to be considered fair use of the photograph.
This is not to say that all commercial uses are denied the ability to claim fair use. A commercial use can still be fair if it has a further purpose or different character from the original, such as commenting on or criticizing the original work. The question is one of degree: the more the use serves a genuinely different purpose, the less its commercial nature counts against it.
Courts often describe a use with a different purpose as “transformative.” For years, many courts treated a use as transformative whenever it added new expression, meaning, or message to the original. The Supreme Court narrowed that view in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).
In Warhol, photographer Lynn Goldsmith took a portrait of the musician Prince, and Andy Warhol later created a series of silkscreen images based on it. After Prince died, the Warhol Foundation licensed one of those images to a magazine publisher for a cover illustrating a story about Prince. Goldsmith licensed her photographs for the same kind of use. The Court held that the first factor favored Goldsmith. Even if Warhol’s image added a new meaning or message, the specific use at issue (licensing an image of Prince to a magazine for a story about Prince) shared substantially the same purpose as Goldsmith’s photograph, and it was commercial.
Said another way, new expression or meaning alone is not enough. If you are using someone else’s work for the same purpose the original serves, and you are doing it commercially, the first factor will likely weigh against you, no matter how much creativity you add. A use that targets or comments on the original work, such as parody or criticism, is more likely to have the distinct purpose the first factor requires.
Note also that the Court looked at the particular use being challenged, not the artwork in the abstract. The same work can be fair use in one context and infringing in another.
2. Nature of the Copyright Work
The courts will consider the nature of the copyright work, and specifically the amount of creativity that went into the creation of the work.
If the work is largely technical or a news item, such as a simple whitepaper, it is more likely that fair use defenses will be successful, than if the work requires a high degree of creativity, such as a novel or a movie.
3. Amount And Substantiality
Courts will look at the amount and substantiality of the copyright work that has been used.
If you use a small clip of a TV show, song, or movie in an advertisement, it is more likely to be considered fair use than if you use the entire work.
However, even using a small clip may be enough to amount to full infringement, depending on which portion of the work you are using, if it is “the heart and soul” of the work in question.
4. Effect on the Work’s Value
The courts will also look at the effect on the work’s value.
Courts consider both the effect of the defendant’s particular use, as well as the effect that such uses, if widespread, would have on the marketability of the original work in question.
Specifically, courts examine if the original work is losing, or could lose sales, if the use continues and is widespread.
Attribution is not one of the four statutory factors. Giving credit to the author is good practice, but crediting the author does not, by itself, turn an infringing use into a fair use.
There is not a specific formula that courts use to determine if the defendant in a copyright infringement case is covered under the fair use defense.
Instead, courts will look at all the facts in the case before making a decision. However, there are a number of scenarios that are more likely to sustain a fair use defense.
Common Fair Use Scenarios
Criticism, Comment, and News Reporting
In general, copyrighted works may be discussed and even sampled by critics. It is common for book or musical album critics to quote an author or songwriter when reviewing a work. Similarly, news reporters are generally allowed to show clips of television or movies, or play a portion of a song without permission from the copyright holder.
This type of fair use defense typically succeeds when there is something transformative about the use. The commentators copying the work are giving an opinion, comparing it to other works, or engaging with it somehow.
The fair use defense has been successful in situations in which the copyright holder attempts to silence critics of the work. Criticism serves a different purpose than the original work, so it is generally permitted under this defense.
Teaching, Scholarship, and Research
Academics are typically also allowed to use copyrighted works without gaining permission of the author.
Teachers are typically allowed to make copies of short stories, book excerpts, poetry, or song lyrics for students in class, up to a certain extent. However, they may not make unauthorized copies of entire novels to distribute to the class, unless those works are old enough to be part of the public domain.
Students and researchers may also quote copyrighted works in projects, reports, and dissertations because they are generally engaging with the work for a different purpose, such as analysis or commentary.
Parody
Parody, a subset of commentary or criticism, is one of the most common types of fair use defense. Under parody, the work is being used in a humorous way or for social commentary.
Parody requires a certain amount “borrowing” from the original copyrighted work in order to make a point, which is why it is generally permitted as a fair use defense. The Supreme Court in Warhol pointed to parody as an example of a use that needs to borrow from the original because it targets the original.
Fair Use: Avoiding a Copyright Lawsuit
The most reliable way to prevent a copyright lawsuit is to obtain permission from the copyright holder for your use. However, this is not always possible, especially if tight deadlines are creeping up or if you wish to criticize the content of the copyrighted work.
If you are unable to obtain permission, ask whether your use serves a genuinely different purpose than the original work, such as commenting on it, criticizing it, or analyzing it. After Warhol, adding your own creative spin is not enough if your use competes with the original for the same purpose, particularly in a commercial setting.
You should also be selective about which portions of the work you utilize. If you take too much, your use may be considered infringement, even if you are offering valid criticism or creating a thoughtful parody of the work in question.
This article is for informational purposes only and does not contain legal advice. If you have questions regarding copyright protection, copyright infringement, or other intellectual property matters, contact our experienced IP attorneys today with the form on this page, or call us at 855-473-8474.
