"Fair use" is one exemption that allows the use of copyrighted material.

From what I understand, this exemption falls into one of two broad categories:

  1. Teaching, research, news reporting, etc. Basically, this is "educational" use of one sort or another. Although there may be a commercial purpose (for a college, research lab, newspaper), etc., there is a public policy priority of informing people.

  2. The second category is comment, criticism, or parody. Here, the use is clearly commercial, but is often allowed. My understanding is that's because such work is protected under free speech, and perhaps opens new markets (e.g. among people who are "anti" a given work, and who probably wouldn't purchase the original).

On the other hand, certain other "derivative works" are not considered fair use, even though they may be at least somewhat "commentative," and also have educational value.

Why might that be? That is, how might they differ (legally) from items in (2) above?

  • The reason for #2 is not because it's transformative (quite the contrary). I would say it is to protect free speech (including reporting, criticism... or praise), while still protecting the rights of copyright holders. – jcaron Jan 31 '16 at 0:10
  • I'm voting to close this question as off-topic because questions about why the law is the way it is are not legal questions; they are political/social questions. – Dale M Jan 31 '16 at 1:25
  • @DaleM: Took out the "why" part and re-asked about "how" derivative works differ under the law from the other categories. Also reformulated comment, criticism, and parody as free speech expression. – Libra Jan 31 '16 at 2:04
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    @DaleM I don't think this question should be closed as off topic, as fair use was originally created through caselaw, a significant amount of the caselaw behind fair use (at least in the USA) deals with the rationale behind it. Therefore this is a legal question. – Viktor Jan 31 '16 at 18:36
  • What do you mean by "'derivative works' are not considered fair use"? Parody is legally derivative, and you seem to understand that use is fair. There is plenty of case law about "transformative" use being an important consideration for fair use, and transformative use is necessarily derivative. It seems to me that a derivative use is fair insofar as it has commentative or transformative value. The first sentence of your last paragraph suggests that derivative work that is commentative would not be fair, but I disagree: a work with sufficient commentative value would be fair use. – apsillers Jul 5 '16 at 19:45

It is complicated to answer why a law is what it is. Judge Frank Esterbrook writes (in the forward to Reading Law by Scalia and Garner):

Every legislator has an intent, which usually cannot be discovered, since most say nothing before voting on most bills; and the legislature is a collective body that does not have a mind; it "intends" only that the text be adopted, and statutory texts usually are compromises that match no one's first preference. If some legislators say one thing and others something else, if some interest groups favor one outcome and others something different; how does the interpreter choose which path to follow?

I will provide the historical background leading to the current fair use statute and case law, but take from it what you will as to why it is what it is.

Fair use is a statutory defence provided by 17 USC 107. Its application is clearly demonstrated in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

Fair use was an "exclusively judge-made doctrine until the passage of the 1976 Copyright Act". (Campbell)

Courts had been finding exceptions for "fair abridgements" and other precursors to fair use as far back as under the Statute of Anne of 1710. (Campbell, citing William Patry's "The Fair Use Privilege in Copyright Law".)

This doctrine worked its way into US case law in the nineteenth century.

In Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCD Mass. 1841)1, Justice Story distilled the essence of law and methodology from the earlier cases: "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." (Campbell)

Folsom states:

There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work.

This early incorporation of fair use focused on whether something new was being created, or whether the "chief value" of the original work was being taken. This primary focus on transformativeness has stuck with with fair use doctrine until today. Campbell said (internal citations removed):

The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely supersedes the objects of the original creation ("supplanting" the original), or 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". Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and 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.

Campbell also includes the following statement of rationale for why Congress included section 107:

Congress meant § 107 "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way" and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report).

There is no support for your separation of "parody, comment, and criticism " from "teaching, research, and news reporting", or that there are differing amounts of commercial use allowed for these types of work. The statute lists together "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" as examples purposes. The statute requires that "whether such use is of a commercial nature or is for nonprofit educational purposes" be considered in all fair use cases.

There is also very little if any First Amendment rationale expressed for the fair use doctrine. The intersection of the First Amendment and copyright law is more clearly found in the idea/expression dichotomy.

1. Folsom v. Marsh full opinion text


The simplest explanation for why a derivative work violates copyright is that the derivative work in question competes with or devalues (though devaluing and brand association tends to be more trademark territory) the copyrighted work. The competition factor is often why commercial works tend to face stricter scrutiny under fair use.

Much of the argument made for copyright law is that it gives incentive for invention and innovation by protecting usage to allow the creator to profit. Presumably, the "derivative works" that are not deemed fair use, are viewed as an attempt to take profit from the earlier work. Much of fair use is case-by-case, it is difficult to generalize without specific examples.

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    The question, as I read it, is about why "fair use" exists as a legal concept at all. Being a derivative work is not really relevant, and frankly the OP erred in mentioning "derivative work" as having anything to do with "fair use" (though via the notion of "transformation" a derivative work isn't totally irrelevant). – user6726 Jul 6 '16 at 5:14

"Fair Use" is part of the overall purpose of copyright. The purpose of copyright is to benefit the public—not the author. It is supposed to be an incentive to create works that will wind up in the public domain. Fair use is part of the public benefit from copyright.

  • Actually, copyright is a property right, and "fair use" decreases an author's incentive to create anything, if his property rights aren't respected. – user6726 Jul 7 '16 at 2:16
  • The highlights a problem with purposive construction. There are different levels of purpose. Sure, the overarching purpose of copyright law might to "promote the Progress of Science and useful Arts" (what you might call a public purpose), but it achieves that high level purpose by pursuing a sub-purpose of rewarding individual authors with exclusive rights to their expressions. Are those benefits to the author not also the "purpose" of copyright law? The granting of those exclusive rights is certainly the goal of 17 USC 106. – user3851 Jul 7 '16 at 4:37
  • "The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. " Sony v. Universal Studios. – user3344003 Jul 7 '16 at 18:20

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