By Kenneth D. Crews
Congress favored nonprofit educational uses over commercial uses. Copies used in education, but made or sold at a monetary profit, may not be favored. Courts also favor uses that are “transformative,” or that are not mere reproductions. Fair use is more likely when the copyrighted work is “transformed” into something new or of new utility, such as quotations incorporated into a paper, and perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original. For teaching purposes, however, multiple copies of some works are specifically allowed, even if not “transformative.” The Supreme Court underscored that conclusion by focusing on these key words in the statute: “including multiple copies for classroom use.”
This factor examines characteristics of the work being used. It does not refer to attributes of the work that one creates by exercising fair use. Many characteristics of a work can affect the application of fair use. For example, several recent court decisions have concluded that the unpublished “nature” of historical correspondence can weigh against fair use. The courts reasoned that copyright owners should have the right to determine the circumstances of “first publication.” The authorities are split, however, on whether a published work that is currently out-of-print should receive special treatment. Fair use of a commercial work meant for the educational market is generally disfavored. Courts more readily favor the fair use of nonfiction, rather than fiction. Commercial audiovisual works generally receive less fair use than do printed works. A consumable workbook will most certainly be subject to less fair use than would a printed social science text.
Amount is measured both quantitatively and qualitatively. No exact measures of allowable quantity exist in the law. Quantity must be evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective. One court has ruled that a journal article alone is an entire work; any copying of an entire work usually weighs heavily against fair use. Pictures generate serious controversies, because a user nearly always wants the full image, or the full “amount.” On the other hand, a “thumbnail,” low-resolution version of the image might be an acceptable “amount” to serve an education or research purpose. Motion pictures are also problematic, because even short clips may borrow the most extraordinary or creative elements. One may also reproduce only a small portion of any work, but still take “the heart of the work.” This concept is a qualitative measure that may weigh against fair use.
Effect on the market is perhaps even more complicated than the other three factors. Some courts also have called it the most important factor, although such rhetoric is often difficult to validate. This factor means fundamentally that if you make a use for which a purchase of an original theoretically should have occurred—regardless of your personal willingness or ability to pay for such purchase—then this factor may weigh against fair use. “Effect” is closely linked to “purpose.” If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect is often presumed. Occasional quotations or photocopies may have no adverse market effects, but reproductions of software and videotapes can make direct inroads on the potential markets for those works.