17.22 Copyright—Affirmative Defense—Fair Use (17 U.S.C. § 107)

As codified in the Copyright Act of 1976, the court must analyze [four] non-exhaustive factors in determining whether fair use applies.” McGucken, 42 F.4th at 1157; 17 U.S.C. § 107. The fifth numbered paragraph of this instruction reflects that the elements set forth in the statutory test of fair use in 17 U.S.C. § 107 are not exhaustive or exclusive. See Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir. 2003) (“[W]e may not treat the [fair use] factors in isolation from one another.”), overruling on other grounds recognized by Seltzer v. Green Day, Inc., 725 F.3d 1170, 1177 (9th Cir. 2013); Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997). In appropriate circumstances, the court may enumerate additional factors. See Campbell v. Acuff Rose Music, Inc., 510 U.S. 569, 585 n.18 (1994) (considering defendant’s state of mind/good faith as factor).

For an analysis of the fair use factors, see Google LLC, 144 S. Ct. at 1201-08; Campbel, 510 U.S. at 578-94; Harper & Row, 471 U.S. at 560-69; Tresóna, 953 F.3d at 647-52

The Supreme Court and the Ninth Circuit have considered the fair use factors in numerous cases. The following discussion includes a non-exhaustive list of cases that may help analyze the factors.

1.       Purpose and Character of the Defendant’s Use, 17 U.S.C. § 107(1).  The first factor focuses mainly on the degree to which the use is “transformative,” meaning “whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579 (internal quotation marks, brackets, and citations omitted); see also Google LLC, 141 S. Ct. at 1203 (explaining that “‘transformative’ . . . .describe[s] a copying use that adds something new and important”); Dr. Seuss, Enters., L.P. v. Comicmix LLC, 983 F.3d 443, 445 (9th Cir. 2020) (discussing the benchmarks of transformative use). “Adding informative captions does not necessarily transform copyrighted works.” De Fontbrune, 39 F. 4th at 1225; see Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1176-77 (9th Cir. 2012) (concluding that publisher’s use of newsworthy wedding photographs of celebrities was not fair use because such use was, among other things, minimally transformative and indisputably commercial).

Parody which “needs to mimic an original to make its point,” Campbell, 510 U.S. at 580-81, is regularly held transformative.  See, e.g., Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 803 (9th Cir. 2003) (concluding that “transform[ative] associations” with the Barbie doll constituted parody); but see Dr. Seuss, 983 F.3d at 452-53 (holding that infringing use was not parody and not transformative because it did not critique or ridicule the original).

The first factor also considers “whether the use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C.§ 107(1). “If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weight against fair use, absent some other justification for copying.” Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1272, 1282 (2023) (holding that commercial licensing to a magazine of an Andy Warhol silkscreen illustration derived from a copyrighted photo weighed against fair use under the “purpose and character” factor of the fair use defense).  “The crux of the profit/nonprofit distinction is . . . whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 471 U.S. at 562; see A&M Recs., Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001) (“Commercial use does not require direct financial benefit, such use “weighs against a finding of fair use but is not conclusive”). “For-profit news articles are generally considered commercial uses.” McGucken, 42 F.4th at 1158.

Other cases that analyze the first factor include: VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 743 (9th Cir. 2019) (concluding website’s tagging of photos for searchable functionality was not transformative); Tresóna,953 F.3d at 648 (observing that use of song in show was for “nonprofit educational purposes and the resulting work was transformative”) (internal quotation marks and citation omitted); Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017) (concluding that removing objectionable content from film for streaming to customers is not transformative); Seltzer, 725 F.3d at 1176-77 (finding band’s use of artist’s original work in its four-minute concert video backdrop transformative because original work took on new and different meaning in video); SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1278 (9th Cir. 2013) (stating that use of seven- second television clip that introduces band as “biographical anchor” in musical about band supports finding of fair use); Elvis Presley Enters., 349 F.3d at 629 (“Courts have described new works as ‘transformative’ when works use copyrighted material for purposes distinct from the purpose of original material.”).

2.       Nature of Copyrighted Work: The second factor considers “the nature of the copyrighted work.” 17 U.S.C. § 107. This factor “typically has not been terribly significant in the overall fair use balancing.” Dr. Seuss, 983 F.3d at 456 (citation omitted); see also Campbell, 510 U.S. at 586 (considering whether work is factual or creative in nature and whether it was published) (citation omitted); Seltzer, 725 F.3d at 1178 (noting that prior publication by original author tends to support finding of fair use); Napster, 239 F.3d at 1016 (stating that use of copyrighted creative work cuts against fair use finding); Sony Computer Ent. Am. Inc. v. Bleem, 214 F.3d at 1028 (explaining that nature of copyrighted work is most relevant when “the original material and the copy are of a different nature”).

3.       Amount and Substantiality of the Portion Used.: The third factor concerns “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). This factor considers “the quantitative amount and the qualitative value of the original work used in relation to the justification for that use.” Dr. Seuss, 983 F.3d at 456; see also Campbell, 510 U.S. at 586-88 (explaining importance of quantity of materials used, as well as their quality and importance). “This factor weighs against fair use if the infringer published ‘the heart’ of an ‘individual copyrighted picture’ without justification.” McGucken, 42 F.4d at 1162 (quoting Monge, 688 F.3d at 1178); see Tresóna, 953 F.3d at 651 (noting that although “qualitatively significant” portion of original work was used, because of transformative nature of new material, this factor “did not weigh against fair use”); Seltzer, 725 F.3d at 1178-79 (addressing when original works are copied in full because they are “not meaningfully divisible”); Bleem, 214 F.3d at 1028 (noting that fair use finding is not likely when there is high degree of copying and “essence” of copyrighted work and copy are similar).

4.       The Market Effect. The fourth factor concerns the “effect of the use upon the potential market for or the value of the copyrighted work.” 17 U.S.C. § 107(4). This factor includes (1) the “extent of the market harm caused by the particular actions of the alleged infringer,” and (2) “whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original” and the “market for the derivative works.” Campbell, 510 U.S. at 590-91 (citations omitted).

The effectof the defendant’sinfringing work on the marketfor,orvalueof, the plaintiff’s copyrighted workis the mostimportantfairusefactor. Harper & Row, 471 U.S. at 566; SOFA Ent., Inc., 709 F.3d at 1280 (explaining that this factor favors finding of fair use when use “advances [the alleged infringers’] own original creation without any reasonable threat to [the original author’s] business model”); Monge, 688 F.3d at 1181 (emphasizing that potential market exists independent of the copyright owner’s present intent not to publish copyrighted work); Bleem, 214 F.3d at 1026-27 (noting that the market effect “factor may be the most important, [but] all factors must be considered, and the commercial nature of the copies is just one element”; use for comparative advertising can support first fair use factor but negate fourth fair use factor); Dr. Seuss, 109 F.3d at 1403 (balancing public benefit that will result from the defendant’s use against personal gain the copyright owner will receive if use is denied); Triad Sys. Corp., 64 F.3d at 1336-37 (noting that when defendant’s work competes in same market it is less likely fair use).

5.       Additional Factors: See Campbell, 510 U.S. at 585 n.18 (considering the defendant’s state of mind and explaining that permission is not necessary if use is fair); Harper & Row, 471 U.S. at 562 (explaining that the propriety of the defendant’s conduct is relevant to the character of the use because fair use presupposes good faith and fair dealing) (quotation marks and citation omitted); Fisher v. Dees, 794 F.2d 432, 437 (9th Cir. 1986) (“courts may weigh ‘the propriety of the defendant’s conduct’ in the equitable balance of a fair use determination” (citation omitted)).

Revised Dec. 2023