The fair use exception in the Copyright Act provides an affirmative defense to an infringement claim. Section 107 of the Copyright Act provides that the use of copyrighted material for “purposes such as criticism, comment, news reporting, teaching . . . scholarship or research is not an infringement of copyright.” When evaluating a fair use defense by an accused infringer, a court must analyze Section 107’s four factors:
(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.
While it is almost always a fact-intensive inquiry (e.g., lots of attorney time involved), fair use inquiries usually focus on the fourth factor — the impact on the market for the copyrighted work. After all, if someone can duplicate or sell a copyrighted work without paying the copyright owner in violation of the copyright owner’s exclusive rights under the Copyright Act, the incentives for creatives to produce new works are diminished. The foundation for the U.S. copyright system is the Constituion’s grant to Congress of the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Article I, Section 8.
In 2017 photographer Russell Brammer sued Violent Hues Productions for its unauthorized use of Brammer’s photograph of a Washington, DC neighborhood. VIolent Hues used the photo on a website for a loca film festival. Violent Hues moved for summary judgment on the grounds that its use of Brammer’s photograph was a fair use. The district court found in favor of Violent Hues, ruling that it had engaged in fair use. Analyzing the fair use factors, the court found (1) that Violent Hues’ display of Brammer’s photograph on its website was both transformative and noncommercial, in that the site was providing information to festival attendees; (2)
