for any particular field of activity, lawyers and judges consider expectations and
practice in assessing what is “fair” within that field. Moreover, the history of fair use
litigation of all kinds shows that judges return again and again to two key analytical
Did the use “transform” the material taken from the copyrighted work by using
it for a broadly beneficial purpose different from that of the original, or did it
just repeat the work for the same intent and value as the original?
Was the material taken appropriate in kind and amount, considering the nature
of the copyrighted work and of the use?
These two questions effectively collapse the “four factors.” The first addresses the
first two factors, and the second rephrases the third factor. Both key questions touch
on the so-called “fourth factor,” whether the use will cause excessive economic harm
to the copyright owner. If the answers to these two questions are “yes,” a court is
likely to find a use fair—even if the work is used in its entirety. Because that is true,
the risk of a challenge to such a use is dramatically reduced.
Fair use ensures that copyright owners do not have a monopoly over transformative
uses of their works. The converse is also true. When a use merely supplants a
copyright owner’s core market rather than having a transformative purpose, it is
unlikely to be fair. Thus, for example, a library clearly cannot acquire current books
for its collection simply by photocopying or scanning published editions.
In cases decided since the early 1990s, the courts have made it clear that in order
for a use to be considered “transformative,” it need not be one that modifies or
literally revises copyrighted material. In fact, uses that repurpose or recontextualize
copyrighted content in order to present it to a new audience for a new purpose can
qualify as well. The courts also have taught that the more coherent an account the
8. See Neil Netanel, “Making Sense of Fair Use,” 15 Lewis & Clark L. Rev. 715, 768 (2011), surveying
data about fair use cases decided between 1978 and 2011 and concluding that “the key question”
is whether the use is transformative, and, if so, whether the amount taken is appropriate to the
transformative purpose.
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