Fair Use, Explained

Copyright gives an author the exclusive right to copy, distribute, and adapt their own work. Fair use is the major exception: a defense that lets someone else use a copyrighted work without permission, for purposes like criticism, commentary, news reporting, teaching, scholarship, or research. Congress wrote the doctrine into 17 U.S.C. § 107 as a set of four factors for courts to weigh, not a checklist where any single factor wins the case by itself.

1. Purpose and character Whether the use is commercial or nonprofit and educational, and how transformative it is, meaning whether it adds new meaning, message, or purpose rather than just substituting for the original. Section 107's preamble lists criticism, comment, news reporting, teaching, scholarship, and research as illustrative, non-exhaustive examples.
2. Nature of the copyrighted work Courts give more protection to creative, expressive works, like a novel or a photograph, than to primarily factual works, like a technical manual, on the theory that factual material is closer to the kind of information copyright was never meant to lock up.
3. Amount and substantiality used How much of the copyrighted work was used, in both quantity and importance, in relation to the work as a whole. Using a small amount can still weigh against fair use if that small amount is the heart of the original work.
4. Effect on the market Whether the new use harms the potential market for, or value of, the original work, including markets the copyright owner would otherwise be able to license. This factor often carries the most practical weight in close cases.

No one factor is dispositive on its own; courts weigh all four together, and the statute states that unpublished status alone does not bar a fair use finding.

What Warhol actually decided

The case involved an Andy Warhol silkscreen of Prince, called Orange Prince, based on a photograph taken by Lynn Goldsmith. The Andy Warhol Foundation licensed the silkscreen to a magazine as an illustration for a story about the musician, the same kind of use Goldsmith's own photograph had been licensed for. In a 7 to 2 decision, the Supreme Court held that licensing was not fair use. The first factor, purpose and character, favored Goldsmith because both works were put to the same commercial, illustrative purpose, and that shared purpose was not outweighed by how visually transformed the photograph had become in Warhol's hands.

The Court was careful to limit what it was deciding. It did not overrule Campbell v. Acuff-Rose Music, its 1994 decision holding that a commercial parody, 2 Live Crew's version of "Oh, Pretty Woman," could qualify for fair use, and that a work's commercial nature is only one factor to weigh rather than a bar to fair use on its own. Campbell also established that the more transformative a new work is, the less the other factors, including commercialism, weigh against it. The Warhol Court said it was not disturbing that transformative-use framework generally, only clarifying that when a new work substitutes for the original in the same commercial market, that overlap can defeat fair use even for a work that looks artistically transformed.

Why the line is still blurry

Fair use remains a case-by-case, fact-intensive defense. Warhol and Campbell can be read together, not as conflicting, because they answered different questions: Campbell asked whether a parody's commercial nature defeats fair use on its own, and Warhol asked what happens when a later work and the original are licensed into the same market. Readers should not treat either case, or this article, as a substitute for case-specific legal advice, since how a court applies these four factors depends heavily on the exact use at issue.