The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

The first factor is considered the most important of the four Fair Use factors, with more emphasis now put on the purpose and character of the use rather than its commerciality. But what exactly is the “purpose and character of the use?” This is the concept that the new work must do more than simply reuse the original copyrighted material; it must transform it into something different. For example, creating a life-like painting based on a photograph is nothing more than copying the photo with paint and a brush, but creating an impressionistic painting using new elements as well as elements from the photograph may qualify as something new (remember, the only way to really know if the new use is transformative is to take the case to court).

Prior to the 1990s, more emphasis was put on the new work’s commerciality, almost to the point that commercial works couldn’t get away with using copyrighted material by claiming Fair Use. In 1990, district court judge Pierre Leval wrote a law review article arguing that the more transformative the use of the copyrighted material, the less the new work’s commerciality should be held against it in a Fair Use case. This idea was confirmed in 1994 by the Supreme Court in Campbell v. Acuff Rose Music, Inc.

In Campbell, the copyright holder of Roy Orbison’s song Oh Pretty Woman brought suit against rap group 2 Live Crew for using the opening riff and first line of the Orbison song in its own parody song, Pretty Woman. The district court for the Middle District of Tennessee ruled for 2 Live Crew after agreeing with its fair use defense, but the Sixth Circuit Court of Appeals reversed the decision. The case ended up in the Supreme Court, which upheld the original district court ruling. In regard to the first factor, Justice Souter wrote that its purpose is to determine if the new work simply reuses the copyrighted material or if it “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” A perfect analogy of this is finding an old tire and mounting it on your car (reuse) versus turning it into a plant holder (transformative).

Souter also goes on to say that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use,” and “Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of §107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities ‘are generally conducted for profit in this country.’”

I find a lot of my photographs being used by news agencies, and I’ve never had one of them pull the Fair Use card despite “news reporting” specifically being referenced in §107 (in fact, most pay up rather quickly). News agencies that use photographs without permission rarely win copyright lawsuits, and mainly because of this first factor. Nearly all are for-profit companies, and they do not transform a photo into something new. Photos meant to illustrate articles on my website are simply used to illustrate articles on their websites. They may try to spin their use as transformative, but in nearly all of the cases I have read, the fact that a news agency is a for-profit business always trumps the minor transformations they make, or claim to make.

One of the few times a news agency successfully beat a copyright lawsuit by using the Fair Use defense is the case of Nunez v. Caribbean International News Corp. Photographer Sixto Nunez took some risqué photos of Joyce Giruad as part of her modeling portfolio. Giruad went on to become Miss Puerto Rico, scandal ensued, and the photos were published without permission in El Vocero, a newspaper owned by the defendant. Nunez sued, and Caribbean International successfully defended itself with the Fair Use defense.

In regard to Factor 1, despite publishing the photos for profit, the risqué photos were themselves the news and thus essential for the news article. Per the First Circuit Court of Appeals, “Unauthorized reproduction of professional photographs by newspapers will generally violate the Copyright Act of 1976; in this context, however, where the photograph itself is particularly newsworthy, the newspaper acquired it in good faith, and the photograph had already been disseminated, a fair use exists under 17 U.S.C. §107.” Keep this in mind if you win the Pulitzer prize, because your photograph becomes the news. Otherwise, expect most news agencies to pay you for using your photographs without permission.

The second part of Factor 1 pertaining to “nonprofit educational purposes” is not a Get Out of Jail Free card for nonprofit organizations, education-oriented or otherwise. This statement refers to an educational use of a copyrighted work by a nonprofit, not the use of a copyrighted work as a design element on its website or as an illustration in some random post that has nothing to do with public benefit or education, such as a photo used to enhance a Directions and Operating Hours web page. Nonprofit organizations are subject to copyright laws just like everyone else, and they cannot simply use copyrighted works indiscriminately without consequences.

I catch nonprofits using my photos for non-educational purposes all the time, and none have ever brought up Fair Use. I even had a major university pay for using my photo in a free, online encyclopedia. That’s about as Fair Use as it gets, not to mention the organization was a state university, and states are immune from copyright lawsuits per the Eleventh Amendment (a topic also covered in Photo Repo).

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