one coarse and one fine. The use needs to go through both in order to even be considered
as a candidate for fair use.
The four criteria of fair use each have its own weight and reason why they are included
in the list. First, the “purpose and character of the use” criteria aims to identify the
precise circumstances and parameters of the activity, in the course of which the copyrighted
music is used, and its results. Meaning, why exactly did the use occur, and if, for instance,
such use of a copyrighted song has created a transformative type of a music derivative.
Was something decidedly new created through the use, transformative use, rather than imitative,
is more likely to be considered fair use. Second, the “nature of the copyrighted work”
criteria is meant to discern if the composition or a recording used is appropriate for the
activity in which it is used, and if the work’s character fits a fair use claim in such activity.
For instance, if the original recording was created as an instructional tool to be used
in a classroom, it could not be copied and used by a teacher without a permission or
a license by the copyright owner as fair use; because the sole purpose of the work is of
the instructional nature.
Third, the criteria regarding the “amount and substantiality of the portion used”,
is there to examine how much of a composition or a recording is used in relation to its
whole, for the purpose of the use. The use of the smaller portions of the work are naturally
considered more favorably by the courts than the use of the larger ones; and the use of
the entire work is virtually never considered fair use. By the way, keep in mind that all
of this applies only for the areas of use listed in the fair use provision - criticism,
comment, news reporting, and so on - and not for other types of uses. For example, sampling
in the context of a commercial music industry project, no matter how small of a portion
of a copyrighted work might be used, is very unlikely to be considered fair use. We’ll
talk about that issue separately a bit later in this section. And lastly, the “effect
of the use on the potential market” criteria aims to discern the influence of the use of
the copyrighted work on the work’s financial potential. For instance, to use the example
we mentioned earlier, of the instructional recording. The copying and the use of such
recording in the classroom, without the permission of the copyright owner, would under this criteria
not fit the fair use claim, either. Just like it didn’t under the “nature of the work”
criteria we talked about earlier. Because the work was created for the education market,
using it in a classroom without a permission or a license payment would adversely affect
its value in that market.
Darko VelichkovskiMusic Industry Program Director
