Fair use is legally required to be case-by-case
Brown 21 (Marissa Brown, JD from Brooklyn Law School, “NOT SO FAIR USE: THE SHORTCOMINGS OF CURRENT NOT SO FAIR USE: THE SHORTCOMINGS OF CURRENT COPYRIGHT LAW IN MUSIC SAMPLING COPYRIGHT LAW IN MUSIC SAMPLING” Brooklyn Journal of Corporate, Financial, and Commercial Law Volume 15, Issue 2, Article 5. 5/18/2021. Accessed 6/19/2024. https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1354&context=bjcfcl) wtk
Codified at 17 U.S.C §107, fair use is an affirmative defense to copyright infringement that permits the unlicensed use of copyright-protected work in certain circumstances. 27 According to the Supreme Court, the fair use doctrine “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”28 Rather than use a bright-line rule, §107 requires courts to engage in a case-by-case determination to establish whether a particular use is fair.29 To aid this case-by-case analysis, §107 provides four factors to consider when determining if an unlicensed use of a copyright-protected work is fair use.30 The factors are:
(1) the purpose and character of the use, including whether such use is of 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. 31
Since the doctrine is an equitable rule of reason, there can be no generally applied definition, and each case much be analyzed and determined on its facts using the four factors to aid in the analysis.32