Will Fair Use Survive? Free Expression in the Age of Copyright Control

   By Marjorie Heins and Tricia Beckles, December 2005

   Brennan Center for Justice at NYU School of Law

   Free Expression Policy Project

   Are increasingly heavy assertions of control by copyright and trademark owners smothering fair use and free expression? The product of more than a year of research, Will Fair Use Survive? paints a striking picture of an intellectual property system that is perilously out of balance.

Introduction

Fair use is a crucial exception to "intellectual property" controls - it allows users to publish, distribute, or reproduce copyrighted or trademarked material without permission, for certain purposes. But extensive research, including statistical analysis and scores of firsthand stories from artists, writers, bloggers, and others, shows that many producers of creative works are wary of claiming fair use for fear of getting sued. The result is a serious chilling effect on creative expression and democratic discussion.

Several factors must be considered in deciding whether a use of copyrighted material is "fair." Among the most important are:

1) the purpose and character of the new work;

2) the nature of the original work;

3) the amount and substantiality of the original work that was used; and

4) the effect of the new work on the market for the original.

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