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Question: What is the purpose of the fair use defense?
Answer: There is no easy answer to this question. However, one way to approach the question is to examine the purposes of the copyright laws. The clause of the Constitution that gives Congress the power to enact copyright laws indicates that the purpose of the given power is to "promote the progress of science and the useful arts" by allowing authors to secure the exclusive rights in their works for "limited times." Thus, many see the Constitutional scheme behind copyright as a kind of balance between (1) forming incentives for authors to create new works by giving them rights that will allow them to make money from their works, and (2) limiting the rights so that the works themselves are useful to the public and in turn advance the "progress of science and the useful arts." Fair use fits into this scheme by giving the public the right to use copyrighted works in certain situations even though the author has exclusive rights. That is, in some circumstances, such as certain uses involving scholarship or research, the "progress" referred to in the Constitution is best promoted and the public is best served by allowing an unauthorized use of the copyrighted work. These uses are deemed fair because they are consistent with the power given to Congress to enact copyright laws.
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Question: Can I post a copyrighted image on my website?
Answer: Maybe. In order to determine whether you can post a copyrighted image on your website, a court would apply the four factor fair use analysis. First, it is important to determine the purpose and character of the use. If the use is commercial in nature, rather than for nonprofit education purposes, it less likely to be considered a fair use. To determine if it is commercial, a court would consider whether the use was exploitative and for direct profit, or if instead any commercial character was incidental. Also, if the use is transformative and for a different purpose than the original work, it is more likely the first factor will weigh in favor of finding a fair use. For example, in Kelly v. Arriba Soft Corporation, the court found that posting "thumbnail" images on a website was a fair use because such images served a different purpose than the original images. Second, the court would consider the nature of the copyrighted work. The reproduction of a predominantly factual work is more likely to be considred a fair use than the reproduction of a highly creative one. Third, it is important to consider the amount and substantiality of the portion of the copyrighted image used. This inquiry looks at not only the quantity, but also on the expressive value, of the portion used. If a large amount of the original image is copied, or if the portion copied is substantially significant to the work as a whole, it is less likely the court will find such copying to be a fair use. Finally, the most important factor in this inquiry is the effect of the use on the potential market for the copyright owner's work. If posting the image on the website leads to a reduction in sales of the copyrighted work or discourages people from accessing the copyright owner's website, a court is more likely to find that the use is not fair and has an adverse impact on the copyright owner's market. These four factors will be evaluated by a court in a factual inquiry to determine whether the posting of the image would constitute a fair use.
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