Fair Use
Fair use is a statutory limitation on copyright that permits certain uses of copyrighted works without permission or payment. Courts apply a four-factor balancing test: (1) the purpose and character of the use, including whether it is transformative or commercial; (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 for or value of the original. Fair use is an affirmative defense — it excuses infringement rather than preventing it. All four factors must be weighed together; no single factor is dispositive.
Fair use is the most litigated copyright doctrine in entertainment. Music sampling, documentary footage clearance, parody and satire, news commentary, educational use, and AI training data claims all turn on fair use analysis. The Supreme Court's 2023 decision in Andy Warhol Foundation v. Goldsmith significantly narrowed the transformative use defense — reshaping how entertainment attorneys analyze fair use across virtually every context.
Codifies fair use and lists the four factors courts must weigh. Also lists non-exclusive examples of fair use purposes: criticism, comment, news reporting, teaching, scholarship, and research.
The exclusive rights of the copyright owner — the rights that fair use excuses when the defense applies.
Whether 2 Live Crew's commercial parody of Roy Orbison's 'Oh, Pretty Woman' qualified as fair use.
The Supreme Court held that commercial parody can qualify as fair use and that all four factors must be weighed together — no single factor is per se determinative. Established that a commercial purpose does not automatically defeat fair use. Remains the foundational parody/fair use case.
Whether Warhol's commercial licensing of silkscreens derived from Lynn Goldsmith's photograph of Prince constituted fair use.
The Supreme Court held it was not fair use — the commercial licensing served the same market function as the original photograph. Significantly narrowed transformative use, holding that 'transformation' must create a new meaning or message, not merely a new purpose. The most important fair use decision in decades.
Whether Google's scanning of millions of books for search indexing constituted fair use.
The Second Circuit held that scanning for search indexing was transformative fair use — the books were used for a different purpose (finding, not reading) that did not substitute for the originals. Often cited by AI companies in training data fair use arguments.
The Warhol decision has shifted the fair use landscape significantly against uses that serve similar commercial markets to the original — directly affecting documentary clearance decisions, music sampling, parody advertising, and AI training data analysis. Productions that previously relied on transformative use arguments for incidental uses now face stronger infringement exposure. The practical consequence is more conservative clearance decisions, higher licensing costs, and greater litigation risk for uses that once seemed clearly protected.
Post-Warhol, evaluate whether the proposed use serves the same market function as the original — if it does, transformative purpose arguments are significantly weakened even if the work is visually or conceptually different.
Document the transformative purpose of any use before proceeding — internal records showing the purpose, the context, and the audience will be important evidence if the use is challenged.
'I changed it significantly' is not a fair use defense — the Warhol Court made clear that visual or creative differences do not establish fair use if the commercial purpose remains the same.
For documentary and news productions, fair use analysis should still proceed on all four factors — the news/commentary purposes remain significant under factor one even after Warhol.
Advise clients that fair use is a litigation defense, not a clearance right — relying on fair use means accepting the risk and cost of being sued and proving the defense in court.
Fair use is a defense — it must be proven in court, it does not prevent infringement from occurring, and relying on it means accepting litigation risk.
All four factors must be weighed — no single factor is determinative, though market effect (factor four) is often the most important.
The Warhol decision (2023) significantly narrowed transformative use — uses that serve the same commercial market function as the original are now harder to defend.
Commercial purpose (factor one) does not automatically defeat fair use, but it weighs against it and requires stronger showing on the other factors.
There is no bright-line rule — specific cases require careful four-factor analysis, and outcomes are inherently uncertain.
No — parody must comment on the original work itself (not just use it as a vehicle to comment on something else). Commercial parody can qualify, but all four factors are still weighed. Satire that uses a copyrighted work without commenting on it receives less protection.
No — even a very small sample can infringe. The Sixth Circuit held in Bridgeport Music that any digital sampling of a sound recording requires a license. Amount used is just one factor; the qualitative significance of what was taken (the 'hook,' the most recognizable element) can weigh heavily against fair use.
Warhol significantly narrowed the transformative use defense under factor one. A use is only transformative if it creates a new meaning or message — not merely if it serves a different aesthetic or creative purpose. Uses that compete in the same commercial market as the original are now much harder to defend as fair use.