The Fair Use Doctrine and Its Availability to Motion Picture Producers

By Brandon A. Blake, Entertainment Lawyer

The fair use doctrine of the U.S. Copyright Act provides that under certain situations, the owner of copyrighted material, whether that is literature, music, or visual art, does not have to consent to the use being made of his or her work. In other words, the use of copyrighted music without permission is infringement under section 106 of the Copyright Act, but section 107 permits fair use of copyrighted material in some instances. The doctrine of fair use requires the filmmaker to meet four factors regarding the use of the copyrighted material, and regarding the effect the use will have on the market for the copyrighted work.

The Fair Use Doctrine

The Copyright Act sets out that notwithstanding section 106 and the exclusive rights given to owners of copyrighted works, the fair use of a copyrighted work, including use by reproduction in copies for purposes of critique, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. (17 US Code Section 107). In determining whether the use is a fair use of a particular work the factors to be considered include; 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used; and 4) the effect of the use on the potential market of the copyrighted work. The United States Supreme Court has decided three major cases invoking fair use since 1984, and each time it applied and considered each of the four statutory factors in arriving at a holding.

Factor One: The purpose and character of use

The first factor of the fair use doctrine in the Copyright Act analyzes the purpose and character of use, including whether such use is of a commercial nature or is for non-profit educational purposes. (17 US Code Section 107(1)). There are two parts to the first factor; 1) whether a use is referred to in the first sentence of Section 107 (criticism, comment, news reporting, teaching, scholarship, or research) and is therefore a productive use; and 2) the question of whether a publication was commercial as opposed to non-profit. This question of commercial versus non-profit use tends to weigh against a finding of fair use, specifically, when the user stands to profit from exploitation of the copyrighted material without paying the customary price. (Harper and Row, 471 US at 542—43)

The court de-emphasized the listed purposes in Section 107, placing them on a level no higher than the four enumerated factors when it addressed fair use in the Harper and Row case. The list of purposes was not meant to be exhaustive. The Court also refused to acknowledge any definite fair uses, remarking that the drafters of section 107 intended to create only an affirmative defense, and one that would have to be analyzed on a case-by-case basis.


Factor Two: Nature of the copyrighted work

The second factor addresses the nature of the copyrighted work. (17 USC S 107(2)). The Court significantly filled in this provision, holding that the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.

Factor Three: Amount and substantiality of use

The third factor of the fair use provision requires the court to look at the amount and substantiality of the portion used in relation to the copyrighted work as a whole. (17 US Code Section 107(3)). The copying of works compiled in larger works in their entirety demonstrated using a portion that was too large to be considered fair use. American Geophysical Union, et al. v. Texaco, Inc., 60 F.3d 913, 921 (2d Cir. 1994). In American Geophysical Union v. Texaco, the defendant Texaco, routinely copied entire articles from scientific journals for the use of their research scientists. This use is analogous to the copying of an entire song from a recording of a number of different songs.

The Supreme Court significantly filled in the third factor in American by agreeing with the conclusion drawn by the district court that copying a whole article was an obvious violation of fair use. While the entire journal was not copied, entire articles in the journals were copied, which was sufficient because the individual articles were copyrighted.

Factor Four: Effect of the use upon the potential market

The copyright statute requires a court to look at the effect of the use upon the potential market for or value of the copyrighted work. (17 US Code Section 107 (4)). Fair use is limited to copying by others that does not naturally impair the marketability of the work copied. Harper and Row, 471 US at 542; Campbell, 510 US at 570. A showing that if a use became widespread it would adversely affect a potential market of the copyrighted work would negate the fair use defense. A work carrying a stated or negotiated selling price in the market is less likely to be fair use, and the negative affect of the hypothetical widespread use of the practice is a legitimate course of inquiry. American, 6 F.3d at 921. Inquiry into the effect on the potential market looks at: 1) the potential reduction of the sales of the allegedly infringed work; and 2) the potential loss of revenue from the allegedly infringing acts. In addressing the fourth factor, the Court has focused on the loss established by the infringing act, and also on the loss from a hypothetical expanding of this type of use. (Harper and Row, 471 US at 542)


Fair use is not the broad exception to copyright law that legal scholars once thought it might become. Notably for documentary makers and student filmmakers, the fact that a film is made as part of a grant project or for class credit, or for use only in film festivals, does not necessarily exempt the filmmaker from obtaining all of the normally required licenses. For example, the very existence of festival rights for music makes it unlikely that any use by a filmmaker of a song will be a fair use if exhibited in a film festival. Additionally, film festivals are far from the non-profit forums that they are often portrayed to be. Unless the filmmaker’s work is a narrowly conceived documentary or experimental work produced for an educational or non-profit purpose, and made without broad commercial distribution in mind, the fair use doctrine will most likely not be available.

Acknowledgments: Harper and Row, 471 US at 542-43; American Geophysical Union, et al. v. Texaco, Inc., 60 F.3d 913, 921 (2dCir. 1994).


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