Nonfiction filmmakers and authors often need to refer to, quote, show, or discuss material created by someone else. A documentary might include archival footage, photographs, music, news clips, or excerpts from a book. A nonfiction book might quote a letter, reproduce an image, or discuss another author’s work.
Sometimes permission is unavailable, too expensive, or unnecessary. U.S. copyright law recognizes a doctrine called fair use, which can allow certain uses of copyrighted material without the copyright owner’s permission. But fair use is not a blanket exception for nonfiction, journalism, education, or material used for a good cause. It is a fact-specific legal analysis.
Section 107 of the Copyright Act lists four factors courts must consider. Courts weigh them together; no single factor controls every case. It’s a common misconception that fair use is measured by a certain amount of the use. However, that is only one of four considerations and must be analyzed in light of the other factors. It’s also important to point out that fair use is a defense to copyright infringement, not an outright pass to use someone else’s protected works.
The examples below are intended to help filmmakers and authors understand the questions involved, not to determine whether a particular use is fair.
Factor 1: Purpose and character of the use
The first factor looks at why and how the copyrighted material is being used. The statute expressly mentions whether the use is commercial or nonprofit educational. Courts also consider whether the new work uses the material for a different purpose or adds new meaning, context, or insight—a concept often called “transformative use.”
For example, a documentary that uses a short clip to analyze how a public figure was portrayed may have a stronger fair use argument than one that uses the same clip simply to recreate the original entertainment experience. A book that quotes a passage to criticize or discuss the author’s argument may present a different case from one that uses the passage as decoration or to give readers a substitute for the original.
A new work does not become transformative just because it has a new title, message, or artistic style. The question is how the specific use relates to the purpose of the original and to the purpose of the use in the new work. In Andy Warhol Foundation v. Goldsmith, the Supreme Court emphasized that the analysis focuses on the particular use being challenged. A new meaning or message may be relevant, but it does not by itself settle the first factor, especially where the new use serves a similar purpose in a market where the original is also licensed.
Commercial use does not automatically defeat fair use, and nonprofit or educational use does not automatically establish it. A commercially released documentary or traditionally published book can still have a fair use argument, depending on all the circumstances.
Factor 2: Nature of the copyrighted work
The second factor considers the kind of material used and how closely it relates to copyright’s purpose of protecting creative expression. Courts generally distinguish between factual works and highly creative works.
Using material from a factual source, such as a news report, historical document, or technical article, may weigh more favorably toward fair use than using material from a novel, screenplay, photograph, song, or other highly creative work. That distinction is not absolute: factual works can contain protected expression, and creative works can sometimes be used fairly.
Whether the original work was published also matters. Using material from an unpublished diary, letter, manuscript, or other private work may weigh against fair use because the copyright owner generally has an interest in deciding when and how to publish it. But unpublished status is one part of the analysis, not an automatic prohibition.
Factor 3: Amount and substantiality of the portion used
The third factor looks at both how much material was used and how important that material is to the original work. There is no universal rule permitting a particular number of words, seconds of footage, or percentage of a work.
Courts may ask whether the amount used was reasonable in relation to the purpose. If a film uses a clip to criticize a particular scene, for instance, the amount needed to make the criticism understandable may differ from what would be needed to establish a historical event. A nonfiction author quoting a passage to analyze a specific argument may have a different rationale from one reproducing the passage as a convenient source of information.
The quality of the excerpt matters too. A short quotation or brief clip might still take the “heart” of a work. Conversely, using an entire work is not automatically unfair in every context, although it can make the argument harder. The key question is not only how much was taken, but why that amount was needed for the use.
Factor 4: Effect on the market for the copyrighted work
The fourth factor considers whether the use harms the existing or potential market for the original—or its value. Courts may consider whether the new work substitutes for the original, reduces demand for it, or interferes with a market the copyright owner reasonably serves.
For example, a documentary that uses a short excerpt to comment on or critique the source material may not serve the same function as the original work. But using substantial portions of a film, book, song, or image collection in a way that lets the audience experience the original without obtaining it can raise greater market concerns.
The analysis can also include established licensing markets. But the fact that an owner would charge a fee for any use does not, by itself, resolve the fair use question; otherwise, permission would always be required. The purpose of the use and the other factors remain relevant.
Applying the factors to a real project
Fair use is assessed in context. The same excerpt might be treated differently depending on whether it appears in a critical discussion, a historical explanation, a biography, or a scene intended mainly to entertain. The analysis may also depend on how much is used, what surrounds it, where it appears, and how the finished work is distributed.
Before relying on fair use, filmmakers and authors can help clarify the analysis by documenting:
What copyrighted material is being used, and who owns it.
The precise purpose of each use in the work.
Why the particular excerpt, image, or recording is needed.
Whether less material could accomplish the same purpose.
How the use relates to the original and to any existing or likely licensing market.
Attribution is good practice when appropriate, but credit alone does not make a use fair. Likewise, adding a disclaimer or calling a work “educational,” “documentary,” or “noncommercial” does not determine the result.
Fair use concerns copyright. Other issues, such as privacy, publicity rights, defamation, contract restrictions, trademark, or music rights, may require separate analysis. A use that may be fair under copyright law can still raise other legal or practical concerns, including questions from a distributor, publisher, insurer, or errors-and-omissions carrier.
A case-by-case analysis
The four factors provide a framework, not a formula. Courts balance them based on the particular use and the full circumstances. When a project depends on copyrighted material, evaluate the use early enough to consider alternatives, seek permission where appropriate, or obtain project-specific legal advice.
Further reading: 17 U.S.C. § 107; U.S. Copyright Office Fair Use Index; Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.
This article provides general information about U.S. copyright law and is not legal advice. Fair use depends on the facts of a particular use.