Editing Fair use (section)

== U.S. fair use factors{{anchor|Use rationale|17 USC § 107}}<!-- a considerable number of Wikipedia's copyright templates link to this section.--> ==
Examples of fair use in [[United States copyright law]] include commentary, search engines, criticism, [[parody]], news reporting, research, and scholarship.<ref>{{cite journal |last1=Netanei |first1=Neil Weinstock |title=Making Sense of Fair Use |journal=Lewis & Clark Law Review |date=2011 |volume=15 |issue=3 |page=715 |url=https://cloudfront.escholarship.org/dist/prd/content/qt5mh7w8hc/qt5mh7w8hc.pdf |access-date=April 16, 2018 |archive-date=April 17, 2018 |archive-url=https://web.archive.org/web/20180417022757/https://cloudfront.escholarship.org/dist/prd/content/qt5mh7w8hc/qt5mh7w8hc.pdf |url-status=live }}</ref> Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor [[Test (law)|test]].

The U.S. Supreme Court has traditionally characterized fair use as an [[affirmative defense]], but in ''[[Lenz v. Universal Music Corp.]]'' (2015)<ref>''[https://scholar.google.com/scholar_case?case=12567649168680108221 Lenz v. Universal Music Corp.] {{Webarchive|url=https://web.archive.org/web/20191216212100/https://scholar.google.com/scholar_case?case=12567649168680108221 |date=December 16, 2019 }}'', 801 F.3d 1126, 1133 (9th Cir. 2015).</ref> (the "dancing baby" case), the U.S. Court of Appeals for the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but was an expressly authorized right, and an exception to the [[exclusive right]]s granted to the author of a creative work by copyright law: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright."

{{Blockquote|
;{{UnitedStatesCode|17|107}}
Notwithstanding the provisions of sections {{UnitedStatesCode|17|106}} and {{UnitedStatesCode|17|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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

:# the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
:# the nature of the copyrighted work;
:# the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
:# the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.<ref name="Sec107">{{cite web|title=17 U.S. Code §&nbsp;107 – Limitations on exclusive rights: Fair use|url=https://www.law.cornell.edu/uscode/text/17/107|website=Legal Information Institute|publisher=Cornell University Law School|access-date=November 16, 2015|archive-date=May 7, 2019|archive-url=https://web.archive.org/web/20190507195714/https://www.law.cornell.edu/uscode/text/17/107|url-status=live}}</ref>}}

[[File:Joseph Story.jpg|thumb|upright=0.75|left|alt=Oil portrait of Joseph Story|Joseph Story wrote the opinion in ''[[Folsom v. Marsh]]''.]]
The four factors of analysis for fair use set forth above derive from the opinion of [[Joseph Story]] in ''[[Folsom v. Marsh]]'',<ref name="Folsom" /> in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own.<ref name="Patterson">{{cite journal|title=Folsom v. Marsh and Its Legacy|journal=Journal of Intellectual Property Law|date=April 1, 1998|first=L. Ray|last=Patterson|volume=5|issue=2|pages=431–452|url=http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1346&context=fac_artchop|format=PDF|access-date=March 6, 2011|archive-date=July 20, 2011|archive-url=https://web.archive.org/web/20110720084010/http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1346&context=fac_artchop|url-status=live}}</ref> The court rejected the defendant's fair use defense with the following explanation:

{{blockquote|
[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy ...

In short, we must often ... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.
}}

The statutory fair use factors quoted above come from the Copyright Act of 1976, which is codified at {{UnitedStatesCode|17|107}}. They were intended by Congress to clarify rather than to replace, the prior judge-made law. As Judge [[Pierre N. Leval]] has written, the statute does not "define or explain [fair use's] contours or objectives." While it "leav[es] open the possibility that other factors may bear on the question, the statute identifies none."<ref name=Leval /> That is, courts are entitled to consider other factors in addition to the four statutory factors.

=== 1. Purpose and character of the use ===
The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.

In the 1841 copyright case ''[[Folsom v. Marsh]]'', [[Joseph Story|Justice Joseph Story]] wrote:
{{blockquote|"[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a [[piracy]]."<ref>{{cite court|litigants=Harper & Row v. Nation Enterprises|vol=723 |reporter=F.2d |opinion=195 |court=2d Cir.|date=1985-05-20|url=https://caselaw.findlaw.com/us-supreme-court/471/539.html|access-date=2018- 01-01}}</ref>}}

A key consideration in later fair use cases is the extent to which the use is ''[[transformation (law)|transformative]]''. In the 1994 decision ''[[Campbell v. Acuff-Rose Music Inc]]'',<ref name="510 US 569" /> the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use.<ref name=Unbundling>{{cite journal|last1=Samuelson|first1=Pamela|title=Unbundling Fair Uses|journal=Fordham Law Review|date=2009|volume=77|url=http://fordhamlawreview.org/assets/pdfs/Vol_77/Samuelson2_Vol_77_Apr.pdf|access-date=November 18, 2015|archive-date=January 19, 2013|archive-url=https://web.archive.org/web/20130119052441/http://fordhamlawreview.org/assets/pdfs/Vol_77/Samuelson2_Vol_77_Apr.pdf|url-status=dead}}</ref> Before the ''Campbell'' decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, [[Toward a Fair Use Standard]].<ref name="Leval">{{cite journal|last=Leval|first=Pierre N.|year=1990|title=Toward a Fair Use Standard|journal=[[Harvard Law Review]]|volume=103|issue=5|pages=1105–1136|doi=10.2307/1341457|jstor=1341457}}</ref> ''[[Blanch v. Koons]]'' is another example of a fair use case that focused on transformativeness. In 2006, [[Jeff Koons]] used a photograph taken by commercial photographer [[Andrea Blanch]] in a collage painting.<ref>{{cite court|litigants=Blanch v. Koons|vol=467|reporter=F.3d|opinion=244|court=2d Cir.|date=October 26, 2006|url=https://caselaw.findlaw.com/us-2nd-circuit/1374144.html|access-date=November 15, 2015|archive-url=https://web.archive.org/web/20171209072319/http://caselaw.findlaw.com/us-2nd-circuit/1374144.html|url-status=live}}</ref> Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under the first fair use factor.

The ''Campbell'' case also addressed the subfactor mentioned in the quotation above, "whether such use is of a commercial nature or is for nonprofit educational purposes." In an earlier case, ''[[Sony Corp. of America v. Universal City Studios, Inc.]]'', the Supreme Court had stated that "every commercial use of copyrighted material is presumptively ... unfair." In ''Campbell'', the court clarified that this is not a "hard evidentiary presumption" and that even the tendency that commercial purpose will "weigh against a finding of fair use ... will vary with the context." The ''Campbell'' court held that hip-hop group [[2 Live Crew]]'s parody of the song "[[Oh, Pretty Woman]]" was fair use, even though the parody was sold for profit. Thus, having a commercial purpose does not preclude a use from being found fair, even though it makes it less likely.<ref name=Reclaiming />

Likewise, the noncommercial purpose of a use makes it more likely to be found a fair use, but it does not make it a fair use automatically.<ref name=Reclaiming>{{cite book|last1=Aufderheide|first1=Patricia|last2=Jaszi|first2=Peter|title=Reclaiming Fair Use: How to Put Balance Back in Copyright|date=2011|publisher=University of Chicago Press|location=Chicago|chapter=Appendix D: Myths and Realities About Fair Use}}</ref> For instance, in ''[[L.A. Times v. Free Republic]]'', the court found that the noncommercial use of ''Los Angeles Times'' content by the Free Republic website was not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for. [[Richard Story]] similarly ruled in ''Code Revision Commission and State of Georgia v. [[Public.Resource.Org]], Inc.'' that despite the fact that it is a non-profit and did not sell the work, the service profited from its unauthorized publication of the [[Official Code of Georgia Annotated]] because of "the attention, recognition, and contributions" it received in association with the work.<ref name="ars-georgiacopy">{{cite web|title=If you publish Georgia's state laws, you'll get sued for copyright and lose|url=https://arstechnica.com/tech-policy/2017/03/public-records-activist-violated-copyright-by-publishing-georgia-legal-code-online/|website=Ars Technica|access-date=March 30, 2017|date=March 30, 2017|archive-date=March 30, 2017|archive-url=https://web.archive.org/web/20170330133242/https://arstechnica.com/tech-policy/2017/03/public-records-activist-violated-copyright-by-publishing-georgia-legal-code-online/|url-status=live}}</ref><ref>Judge Story's decision was reversed on appeal by the [[United States Court of Appeals for the Eleventh Circuit]], which did not consider the question of fair use. {{cite court | litigants=Code Revision Comm'n v. Public.Resource.Org, Inc. | vol=906 | reporter=F.3d | opinion=1229 | pinpoint=1233 | court=11th Cir. | date=2018 | url=https://advance.lexis.com/api/permalink/92843008-66b0-412b-bd2c-025480a70e86/?context=1000516 | archive-url=https://web.archive.org/web/20241008080258/https://signin.lexisnexis.com/lnaccess/app/signin?back=https%3A%2F%2Fadvance.lexis.com%3A443%2Flaapi%2Fpermalink%2F92843008-66b0-412b-bd2c-025480a70e86%2F%3Fcontext%3D1000516&aci=la | url-status=live }}, ''cert. granted'', {{cite court | vol=139 | reporter=S. Ct. | opinion=2746 | date=2019 | url=https://advance.lexis.com/api/permalink/9c591014-7c80-4e52-9426-014d2e775f0c/?context=1000516 | archive-url=https://web.archive.org/web/20241008080311/https://signin.lexisnexis.com/lnaccess/app/signin?back=https%3A%2F%2Fadvance.lexis.com%3A443%2Flaapi%2Fpermalink%2F9c591014-7c80-4e52-9426-014d2e775f0c%2F%3Fcontext%3D1000516&aci=la | url-status=live }}</ref>

Another factor is whether the use fulfills any of the preamble purposes, also mentioned in the legislation above, as these have been interpreted as "illustrative" of transformative use.<ref>{{cite court | litigants=Campbell v. Acuff-Rose Music, Inc. | vol=510 | reporter=U.S. | opinion=569 | pinpoint=584 | date=1994 | url=https://advance.lexis.com/api/permalink/a5fa374f-da05-4ac4-8da7-152a0b0828b4/?context=1000516 | archive-url=https://web.archive.org/web/20241008080205/https://signin.lexisnexis.com/lnaccess/app/signin?back=https%3A%2F%2Fadvance.lexis.com%3A443%2Flaapi%2Fpermalink%2Fa5fa374f-da05-4ac4-8da7-152a0b0828b4%2F%3Fcontext%3D1000516&aci=la | url-status=live }}</ref>

In determining that Prince's appropriation art could constitute fair use and that many of his works were transformative fair uses of Cariou's photographs, the Second Circuit in [[Cariou v. Prince|''Cariou v. Prince'', 714 F.3d 694 (2d. Cir. 2013)]] shed light on how transformative use is determined.<ref name="casetext.com">{{Cite web |title=Cariou v. Prince, 714 F.3d 694 {{!}} Casetext Search + Citator |url=https://casetext.com/case/cariou-v-prince-2 |access-date=October 27, 2022 |website=casetext.com |archive-date=October 8, 2024 |archive-url=https://web.archive.org/web/20241008080258/https://casetext.com/case/cariou-v-prince-2 |url-status=live }}</ref> "What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work."<ref name="casetext.com"/> The district court's conclusion that Prince's work was not transformative is partly based on Prince's deposition testimony that he "do[es]n't really have a message," and that he was not "trying to create anything with a new meaning or a new message."<ref name="Cariou v. Prince 2013">''Cariou v. Prince'', 714 F.3d 694, 707 (2d. Cir. 2013).</ref> However, the artist's intended message "is not dispositive."<ref name="Cariou v. Prince 2013"/> Instead, the focus of the transformative use inquiry is how the artworks will "reasonably be perceived".<ref name="Cariou v. Prince 2013"/>

The transformativeness inquiry is a deceptively simple test to determine whether a new work has a different purpose and character from an original work. However, courts have not been consistent in deciding whether something is transformative. For instance, in Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013), the court found that Green Day's use of Seltzer's copyrighted Scream Icon was transformative. The court held that Green Day's modifications to the original Scream Icon conveyed new information and aesthetics from the original piece.

Conversely, the Second Circuit came to the opposite conclusion in a similar situation in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d. Cir. 2021). In that case, the Warhol Foundation sought a declaratory judgment that Warhol's use of one of Goldsmith's celebrity photographs was fair use. The court held that Warhol's use was not transformative because Warhol merely imposed his own style on Goldsmith's photograph and retained the photograph's essential elements.

=== 2. Nature of the copyrighted work ===
[[File:J. D. Salinger Signature.svg|thumb|alt=Signature of J.D. Salinger in 1950|The unpublished nature of [[J. D. Salinger]]'s letters was a key issue in the court's analysis of the second fair use factor in ''[[Salinger v. Random House]]''.]]

Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.<ref>''[[Warner Bros. and J. K. Rowling v. RDR Books]]'', 575 F. Supp. 2d 513 (S.D.N.Y. 2008)</ref>

To prevent the private ownership of work that rightfully belongs in the public domain, [[idea-expression divide|facts and ideas are not protected by copyright]]—only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The [[Zapruder film]] of the [[assassination of President Kennedy]], for example, was purchased and copyrighted by ''Time'' magazine. Yet its copyright was not upheld, in the name of the public interest, when ''Time'' tried to [[enjoin]] the reproduction of stills from the film in a history book on the subject in ''Time Inc v. [[Bernard J. Geis|Bernard Geis]] Associates''.<ref>293 F. Supp. 130 (S.D.N.Y. 1968)</ref>

In the decisions of the [[Second Circuit]] in ''[[Salinger v. Random House]]''<ref>{{cite court |litigants=Salinger v. Random House, Inc. |vol=811 |reporter=F.2d |opinion=90 |court=2d Cir. |date=1987 |url=https://www.law.cornell.edu/copyright/cases/811_F2d_90.htm |access-date=November 18, 2015 |archive-url=https://web.archive.org/web/20151119070802/https://www.law.cornell.edu/copyright/cases/811_F2d_90.htm |url-status=live }}</ref> and in ''New Era Publications Int'l v. Henry Holt & Co'',<ref>''New Era Publications Int'l v. Henry Holt & Co'', 695 F. Supp. 1493 ([[S.D.N.Y.]] 1988)</ref> the aspect of whether the copied work has been previously published was considered crucial, assuming the right of the original author to control the circumstances of the publication of his work or preference not to publish at all. However, Judge Pierre N. Leval views this importation of certain aspects of France's ''droit moral d'artiste'' ([[Moral rights (copyright law)|moral rights]] of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect.<ref name="Leval" /> This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

=== 3. Amount and substantiality ===
[[File:GoogleImageSearch.png|thumb|alt=Screenshot of Google Image Search results page|The Ninth Circuit has held that the use of thumbnails in image search engines is fair use.]]
The third factor assesses the amount and substantiality of the copyrighted work that has been used. In general, the less that is used in relation to the whole, the more likely the use will be considered fair.

Using most or all of a work does not bar a finding of fair use. It simply makes the third factor less favorable to the defendant. For instance, in ''Sony Corp. of America v. Universal City Studios, Inc.'' copying entire television programs for private viewing was upheld as fair use, at least when the copying is done for the purposes of [[time-shifting]]. In ''Kelly v. Arriba Soft Corporation'', the [[United States Court of Appeals for the Ninth Circuit|Ninth Circuit]] held that copying an entire photo to use as a [[thumbnail]] in online search results did not even weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use".

However, even the use of a small percentage of a work can make the third factor unfavorable to the defendant, because the "substantiality" of the portion used is considered in addition to the amount used. For instance, in ''[[Harper & Row v. Nation Enterprises]]'',<ref name=Harper&Row>{{Ussc|name=Harper & Row v. Nation Enterprises|471|539|1985}}</ref> the U.S. Supreme Court held that a news article's quotation of fewer than 400 words from [[Gerald Ford|President Ford]]'s 200,000-word memoir was sufficient to make the third fair use factor weigh against the defendants, because the portion taken was the "heart of the work". This use was ultimately found not to be fair.<ref name=Harper&Row />

=== 4. Effect upon work's value ===
The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the copyright owner, who must demonstrate the impact of the infringement on commercial use of the work.

For example, in ''Sony Corp v. Universal City Studios'',<ref name=Sony>{{ussc|name=Sony Corp. of America v. Universal City Studios, Inc.|link=|volume=464|page=417|pin=451|year=1984}}</ref> the copyright owner, [[Universal Pictures|Universal]], failed to provide any empirical evidence that the use of [[Betamax]] had either reduced their viewership or negatively impacted their business. In ''Harper & Row,'' the case regarding President Ford's memoirs, the Supreme Court labeled the fourth factor "the single most important element of fair use" and it has enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in ''Campbell v. Acuff-Rose Music Inc''<ref name="510 US 569">{{ussc|name=Campbell v. Acuff-Rose Music, Inc.|link=|volume=510|page=569|pin=|year=1994}}</ref> that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.

In evaluating the fourth factor, courts often consider two kinds of harm to the potential market for the original work.
* First, courts consider whether the use in question acts as a direct market [[substitute good|substitute]] for the original work. In ''Campbell'', the Supreme Court stated that "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur". In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers.<ref name=VideoPipeline>{{cite court |litigants=Video Pipeline v. Buena Vista |vol=342 |reporter=F.3d |opinion=191 |court=3d Cir. |date=September 19, 2000 |url=https://scholar.google.com/scholar_case?case=11920632898766723981&hl=en&as_sdt=6&as_vis=1&oi=scholarr |access-date=November 16, 2015 |archive-url=https://web.archive.org/web/20210225193551/https://scholar.google.com/scholar_case?case=11920632898766723981&hl=en&as_sdt=6&as_vis=1&oi=scholarr |url-status=live }}</ref>
* Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-packs for college students, when a market already existed for the [[licensing]] of course-pack copies.<ref name=PrincetonUP>{{cite court |litigants=Princeton University Press v. Michigan Document Services |vol=99 |reporter=F.3d |opinion=1381 |court=6th Cir. |date=1996 |url=https://www.law.cornell.edu/copyright/cases/99_F3d_1381.htm |access-date=November 16, 2015 |archive-url=https://web.archive.org/web/20150925085245/https://www.law.cornell.edu/copyright/cases/99_F3d_1381.htm |url-status=live }}</ref>

Courts recognize that certain kinds of market harm do not negate fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

=== Additional factors ===
As explained by Judge Leval, courts are permitted to include additional factors in their analysis.<ref name=Leval />

One such factor is acknowledgement of the copyrighted source. Giving the name of the photographer or author may help, but it does not automatically make a use fair. While [[plagiarism]] and copyright infringement are related matters, they are not identical. Plagiarism (using someone's words, ideas, images, etc. without acknowledgment) is a matter of professional ethics, while copyright is a matter of law, and protects exact expression, ''not'' ideas. One can plagiarize even a work that is not protected by copyright, for example by passing off a line from Shakespeare as one's own. Conversely, attribution prevents accusations of plagiarism, but it does not prevent infringement of copyright. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.

=== Procedure and practice ===
The U.S. Supreme Court described fair use as an [[affirmative defense]] in ''[[Campbell v. Acuff-Rose Music, Inc.]]''<ref name="510 US 569" /> This means that in [[litigation]] on copyright infringement, the defendant bears the [[Legal burden of proof|burden of raising and proving]] that the use was fair and not an infringement.<ref>{{cite journal |last1=Snow |first1=Ned |title=Judges playing jury: constitutional conflicts in deciding fair use on summary judgment |journal=U.C. Davis Law Review |date=2010 |volume=44 |page=483}}</ref><ref>{{cite journal |last1=Reid |first1=Amanda |title=Deciding Fair Use |journal=Michigan State Law Review |date=2019 |volume=2019 |pages=601–649 |ssrn=3498352 |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3498352 |access-date=October 17, 2023 |archive-date=October 23, 2023 |archive-url=https://web.archive.org/web/20231023085755/https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3498352 |url-status=live }}</ref> Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a {{lang|la|[[prima facie]]}} case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work [[de minimis|borrowed only a small amount]], for instance, then the plaintiff cannot make out a {{lang|la|prima facie}} case of infringement, and the defendant need not even raise the fair use defense. In addition, fair use is only one of many limitations, exceptions, and defenses to copyright infringement. Thus, a {{lang|la|prima facie}} case can be defeated without relying on fair use. For instance, the [[Audio Home Recording Act]] establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use.<ref>See [[s:United States Code/Title 17/Chapter 10/Section 1008|USC October 17, 1008]], amended by the [[Audio Home Recording Act]].</ref>

Some copyright owners claim infringement even in circumstances where the fair use defense would likely succeed, in hopes that the user will refrain from the use rather than spending resources in their defense. [[Strategic lawsuit against public participation]] (SLAPP) cases that allege copyright infringement, patent infringement, defamation, or libel may come into conflict with the defendant's right to [[freedom of speech]], and that possibility has prompted some jurisdictions to pass anti-SLAPP legislation that raises the plaintiff's burdens and risk.

Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for ''any'' use of non-public domain material, even in situations where a fair use defense would likely succeed. The simple reason is that the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit, or having the mere possibility of a lawsuit threaten the publication of a work in which a publisher has invested significant resources.

Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.<ref>''Wall Data v. Los Angeles County Sheriff's Dept'' (9th Cir. May 17, 2006) ([http://www.ca9.uscourts.gov/datastore/opinions/2006/05/16/0356559.pdf PDF] {{Webarchive|url=https://web.archive.org/web/20101226181812/http://www.ca9.uscourts.gov/datastore/opinions/2006/05/16/0356559.pdf |date=December 26, 2010 }} at Ninth Circuit).</ref>

The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not considered infringing. For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it, is considered a fair use. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though they may sell their review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Fair use is decided on a case-by-case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status.<ref name=Unbundling />