Fair Use And Fair Dealing Under Copyright Law


Fair use is not a “licence’, but rather a privilege that allows the person pleading defence to a suit for infringement to avoid the clutches of copyright law. When a person creates an original creative work, such as a book, song, video, or photograph, the work is protected by copyright as soon as it is fixed in a tangible medium, such as paper, CD, or data file. That means that no one else can use the work without first obtaining permission from the copyright holder, with one exception: fair use. The fair use doctrine in the United States permits the unlicensed use of copyrighted works in certain circumstances, such as education, parody, and news reporting. Section 107 of the Copyright Act of 1976 states the limitations on exclusive rights, also known as Fair Use provision, “Notwithstanding the provisions of section 106 and section 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Factors For Determining Fair Use

When determining whether a particular usage is a fair use, several factors are considered collectively:

1. The purpose and character of the use

Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that non-profit educational and non-commercial uses are fair.  This does not mean, however, that all non-profit education and non-commercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

2. The nature of the copyrighted work

This factor analyses the degree to which the work that was used relates to the copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of fair use than using a factual work (such as a technical article or news item). In addition, the use of unpublished work is less likely to be considered fair.

3. The amount and substantiality of the work used in proportion to the work as a whole

Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found the use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part of the “heart” of the work.

4. The effect of the use on the current or potential market or value for the original work

Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

Case Laws on Fair Use

Plaintiff Mattel Corporation filed a complaint in Mattel v. Walking Mountain (353 F.3d 792) to prevent defendant artist Thomas Forsythe from producing and selling photographs featuring Mattel’s “Barbie” doll. The majority of Forsythe’s photographs show a naked Barbie being attacked by vintage household appliances. Mattel claims that his photographs violate their copyright, trademarks, and trade dress. The defendant artist was granted summary judgement by the United States District Court for the Central District of California. Mattel filed an appeal. The appellate court agreed with the district court that there were no triable issues of fact regarding whether the defendant’s use of the plaintiff’s product was fair. After considering the four fair use factors, the court determined that the defendant’s use of the product constituted fair use and upheld the district court’s grant of summary judgement. When it came to the plaintiff’s trademark claims, the court determined that the defendant’s use of the product qualified as nominative fair use. All three elements were in the defendant’s favour, and the defendant used only what was necessary to make his parodic use of the product easily identifiable.

Fair Dealing

Other countries have a similar exception known as fair dealing, which allows the use of copyrighted work without the need for a licence. In the United States, the doctrine of fair dealing does not apply.

In copyright law, fair dealing is a user’s right to permit the use, or “dealing,” with a copyright-protected work without permission or payment of copyright royalties. The fair dealing exception in the Copyright Act allows you to use other people’s copyright material for research, private study, criticism, review, news reporting, education, satire, or parody as long as you do so in a “fair” manner. The circumstances will determine whether something is “fair.” In most cases, courts will take into account factors such as:

  • the purpose of the dealing (Is it commercial or research / educational?)
  • the amount of the dealing (How much was copied?)
  • the character of the dealing (What was done with the work? Was it an isolated use or an ongoing, repetitive use? How widely was it distributed?)
  • alternatives to the dealing (Was the work necessary for the result? Could the purpose have been achieved without using the work?)
  • the nature of the work (Is there a public interest in its dissemination? Was it previously unpublished?)
  • the effect of the dealing on the original work (Does the use compete with the market of the original work?)


It is safe to conclude that the test for determining a copyrighted work as a Fair Use of such work differs from case to case because such facts take precedence over the law itself. The doctrine of fair use evolved as courts attempted to balance the rights of copyright holders. This doctrine is based on the fundamental belief that not all copying should be prohibited. With the development of jurisprudence, fair use has become an integral part of intellectual property rights, particularly in socially important endeavours such as criticism, news reporting, teaching, and research, encompassing all major educational uses.

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