question: How do we distinguish copyright infringement from fair use? For example, if I were remixing a song, how much of the original song would I need to change or how different would it have to be for it to fall under fair use category?
comment: That's easy: Remixes are never fair use. This was established back in the 80s when hip hop groups were sampling everything heavily - the courts decided that *no amount of sampling* is acceptable under fair use. Fair use is limited to citations for criticism, educational purposes, parody and things of that nature.
passages: The U.S. Supreme Court has traditionally characterized fair use as an affirmative defense, but in "Lenz v. Universal Music Corp." (2015) (the "dancing baby" case), the U.S. Court of Appeals for the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright."
   Courts in the United States balance four factors when considering fair use:
  
  BULLET::::1. Purpose and character of the use (including: commercial nature, non-profit education purposes)
  
  BULLET::::2. Nature of the copyrighted work
  
  BULLET::::3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole
  
  BULLET::::4. Effect of the use upon the potential market or value of the copyrighted work
   Copyright does not prohibit all copying or replication. In the United States, the fair use doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. Section 107, permits some copying and distribution without permission of the copyright holder or payment to same. The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider in a fair use analysis. Those factors are:
  
  BULLET::::1. the purpose and character of one's use
  
  BULLET::::2. the nature of the copyrighted work
  
  BULLET::::3. what amount and proportion of the whole work was taken, and
   Section::::History.:U.S. fair use factors.:4. Effect upon work's value.
  
  The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the copyright owner, who must demonstrate the impact of the infringement on commercial use of the work.
   Section::::History.:U.S. fair use factors.:3. Amount and substantiality.
  
  The third factor assesses the amount and substantiality of the copyrighted work that has been used. In general, the less that is used in relation to the whole, the more likely the use will be considered fair.
   BULLET::::3. "Amount and substantiality of the portion used in relation to the copyrighted work as a whole": Courts look at both the quantity and quality of the copyrighted material that was used. Using a large portion of the copyrighted work is less likely to be fair use. However, courts have occasionally found use of an "entire" work to be fair use, and in other contexts, using even a small amount of a copyrighted work was determined not to be fair use because the selection was an important part—or the “heart”—of the work.
   Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.
   BULLET::::- First, courts consider whether the use in question acts as a direct market substitute for the original work. In "Campbell", the Supreme Court stated that "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur". In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers.
   The Fair Use agreement allows users to use copyrighted materials without asking the permission of the original creator (section 107 of the federal copyright law). Within this agreement, the copyrighted material that is borrowed must be used under specific government regulations. Material borrowed falls under fair use depending on the amount of original content used, the nature of the content, the purpose of the borrowed content, and the effect the borrowed content has on an audience. Unfortunately, there are no distinct lines between copyright infringement and abiding by fair use regulations while producing a remix. However, if the work that is distributed by the remixer is an entirely new and transformative work that is not for profit, copyright laws are not breached. The key word in such considerations is transformative, as the remix product must have been either sufficiently altered or clearly used for a sufficiently different purpose for it to be safe from copyright violation.
   In evaluating the fourth factor, courts often consider two kinds of harm to the potential market for the original work.
   An amendment in 2012 to the section 13(2)(a) of the Copyright Act 1987 created an exception called 'fair dealing' which is not restricted in its purpose. The four factors for fair use as specified in US law are included.
  
  Section::::Influence internationally.:Poland.
  
  Fair use exists in Polish law and is covered by the Polish copyright law articles 23 to 35.
   Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.
   As explained by Judge Leval, courts are permitted to include additional factors in their analysis.
   The U.S. Supreme Court described fair use as an affirmative defense in "Campbell v. Acuff-Rose Music, Inc." This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a "prima facie" case of infringement, and the defendant need not even raise the fair use defense. In addition, fair use is only one of many limitations, exceptions, and defenses to copyright infringement. Thus, a "prima facie" case can be defeated without relying on fair use. For instance, the Audio Home Recording Act establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use.
   Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.
  
  Section::::Fair use in particular areas.
  
  Section::::Fair use in particular areas.:Computer code.
   The statutory fair use factors quoted above come from the Copyright Act of 1976, which is codified at . They were intended by Congress to restate, but not replace, the prior judge-made law. As Judge Pierre N. Leval has written, the statute does not "define or explain [fair use's] contours or objectives." While it "leav[es] open the possibility that other factors may bear on the question, the statute identifies none." That is, courts are entitled to consider other factors in addition to the four statutory factors.
  
  Section::::History.:U.S. fair use factors.:1. Purpose and character of the use.
   Using most or all of a work does not bar a finding of fair use. It simply makes the third factor less favorable to the defendant. For instance, in "Sony Corp. of America v. Universal City Studios, Inc." copying entire television programs for private viewing was upheld as fair use, at least when the copying is done for the purposes of time-shifting. In "Kelly v. Arriba Soft Corporation", the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not even weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use".
   Fair use is the use of limited amounts of copyrighted material in such a way as to not be an infringement. It is codified at , and states that "the fair use of a copyrighted work ... is not an infringement of copyright." The section lists four factors that must be assessed to determine whether a particular use is fair. There are no bright-line rules regarding fair use and each determination is made on an individualized case-by-case basis.
   In the United States, copyright was covered by common law until it was formalized in the Copyright Act of 1976.
  
  Section §107 of this act set out four "fair use" principles to be used in evaluating whether copyright had been infringed:
  
  BULLET::::- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  
  BULLET::::- the nature of the copyrighted work;
  
  BULLET::::- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   Section::::Fair use in particular areas.:Professional communities.
  
  In addition to considering the four fair use factors, courts deciding fair use cases also look to the standards and practices of the professional community where the case comes from. Among the communities are documentarians, librarians, makers of Open Courseware, visual art educators, and communications professors.
   In addition to these four factors, the statute also allows courts to consider any other factors that may be relevant to the fair use analysis. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on the specific facts of that case. There is "no formula" to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.
   Another factor is whether the use fulfills any of the preamble purposes, also mentioned in the legislation above, as these have been interpreted as "illustrative" of transformative use.
  
  It is arguable, given the dominance of a rhetoric of the "transformative" in recent fair use determinations, that the first factor and transformativeness in general have become the most important parts of fair use.
  
  Section::::History.:U.S. fair use factors.:2. Nature of the copyrighted work.
   I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.
   The four factors of analysis for fair use set forth above derive from the opinion of Joseph Story in "Folsom v. Marsh", in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The court rejected the defendant's fair use defense with the following explanation:
   Toward a Fair Use Standard
  
  "Toward a Fair Use Standard", 103 "Harv. L. Rev." 1105 (1990) (alt. citation: v.103, n5. March 1, 1990), is a 1990 law review article on the fair use doctrine in US copyright law, written by then-District Court Judge Pierre N. Leval. The article argued that the most critical element of the fair use analysis is the transformativeness of a work, the first factor in the statutory factors listed in 17 U.S.C. 107. 
  
presuppositions: Remixed songs are considered fair use.  Remixes of a song can fall under the fair use category.
corrections: Remixed songs are not considered fair use.  Remixes of a song never fall under the fair use category.
raw_presuppositions: Remixed songs are considered fair use.  Remixes of a song can fall under the fair use category.
raw_corrections: Remixed songs are not considered fair use.  Remixes of a song never fall under the fair use category.