VFair

The first factor of fair use considers "the purpose and character of the use," with greater excuse being given to uses that are for educational and/or nonprofit uses. This factor reflects one of the goals of copyright law as attempting to enrich the public by stimulating creativity. If someone else's creation is used for commercial gain, that use is less likely to be considered "fair" than nonprofit or educational uses. Also, if the original work is somehow "transformed" when it is used, rather than merely reproduced, that fact will also argue in favor of finding that the character of the use makes it "fair."

The "nature of the copyrighted work" is also relevant and acts as the second factor. The distinctions among different types of creations embraced by this factor again tend to reflect the objective of copyright law as encouraging creative production. The use of factual works is thus more likely to be viewed as "fair" than are the use of creative works. There is also a tendency to view the use of printed works as more "fair" than the use of nonprinted works.

Someone whose entire creation is reproduced is naturally more inclined to feel cheated than someone who has only a portion of her creation reproduced. This natural stance is reflected in the third factor, which considers the "amount" of the work that is reproduced. This consideration is made in relative terms by considering what portion of the entire copyrighted work is reproduced, rather than focusing on any attempt to define an absolute standard. This factor may sometimes pose practical difficulties because it is sometimes the case that the heart of a work is a relatively small portion of the whole.

The final factor considers the "effect of the use upon the potential market for or value of the copyrighted work." In some ways this factor is the most important, and in other ways it is the most difficult to apply. It is entirely sensible to define the use of someone's copyrighted work as less "fair" when it diminishes the value of the original creation or deprives that creation of a portion of its market. But as a practical matter, it can be very difficult to quantify these types of effects.

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