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What is Fair Use?

Gerald M. Levine, Esq, co-author

The U.S. Constitution grants to authors and inventors for “limited times … the exclusive right to their respective writing and discoveries.” Fair use is an exception to a copyright holder’s right to exclusive use of an original work and works derived from it. The Fair Use privilege is embodied in Section 107 of the Copyright Act. The Prologue to the section states that it is applicable for purposes such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” An author who falls into these categories and uses no more copyrighted material than necessary will more likely than not be entitled to assert the privilege.

What a later author cannot do is take wholesale the substance of another’s work. Although fair use appears broad, the privilege must be earned; that is, when challenged by the copyright holder in a court of law the author has to be prepared to defend what has been taken. There have been a number of recent cases including Salinger v. Colting, 641 F. Supp.2d 250, 256 (S.D.N.Y. 2009), affirmed 607 F.3d 68, 80 (2d Cir. 2010) . in which the defendant wrote a sequel to The Catcher in the Rye. Salinger commenced an action to prevent the distribution of the “sequel” in the United States. Defendant argued that his work came within the statutory defense of fair use. The District Court did not agree that Colting was entitled to assert the defense for Sixty Years Later Coming Through the Rye.

In considering whether a taking is a fair use, the Court considers four factors, namely: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.

Under the first factor, the Court considers the extent to which the new work is “transformative.” The question is “whether the new work merely supersede[s] 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.” Successful satires and parodies are examples of transformative works. Colting argued that his work was intended as a parody of Salinger’s novel as well as of Salinger himself. The law holds that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” The reverse is also true: the less transformative the more the other factors will be significant. The first factor is always critical to the analysis.

The District Court held that “[i]t is simply not credible for Defendant Colting to assert now that his primary purpose was to critique Salinger and his persona, while he and his agents’ previous statements regarding the book discuss no such critique, and in fact reference various other purposes behind the book.” Further, with reference to the third factor, “[w]hile some allusion and reference to Catcher would certainly have been necessary for Colting’s purpose of critiquing Salinger . . . the ratio of the ‘borrowed to the new elements’ in 60 Years is unnecessarily high.” In effect, Colting created a derivative work which is an infringement of Salinger’s copyright in his novel. [Authors have an exclusive right to prepare derivative works].

An example of a transformative work is the parody of Gone with the Wind, Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) (Whereas the original novel “describes how both blacks and whites were purportedly better off in the days of slavery,” Randall’s highly transformative parody “flips GWTW’s traditional race roles, portrays powerful whites as stupid or feckless, and generally sets out to demystify GWTW and strip the romanticism from Mitchell’s specific account of this period of our history.”)

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