Cite as 755 F.3d 87 (2nd Cir. 2014)
enrichment of the public.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990).
The Copyright Act furthers this core purpose by granting authors a limited monopoly over (and thus the opportunity to profit from) the dissemination of their original works of authorship. See 17 U.S.C. §§ 102, 106, 302–305. The Copyright Act confers upon authors certain enumerated exclusive rights over their works during the term of the copyright, including the rights to reproduce the copyrighted work and to distribute those copies to the public. Id. § 106(1), (3). The Act also gives authors the exclusive right to prepare certain new works—called “derivative works”—that are based upon the copyrighted work. Id. § 106(2). Paradigmatic examples of derivative works include the translation of a novel into another language, the adaptation of a novel into a movie or a play, or the recasting of a novel as an e-book or an audiobook. See id. § 101. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. Id. § 302.
At the same time, there are important limits to an author’s rights to control original and derivative works. One such limit is the doctrine of “fair use,” which allows the public to draw upon copyrighted materials without the permission of the copyright holder in certain circumstances. See id. § 107 (“[T]he fair use of a copyrighted work … is not an infringement of copyright.”). “From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts….’ ” Campbell, 510 U.S. at 674, 114 S.Ct. 1164.
Under the fair-use doctrine, a book reviewer may, for example, quote from an original work in order to illustrate a point and substantiate criticisms, see Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D.Mass.1841) (No. 4901), and a biographer may quote from unpublished journals and letters for similar purposes, see Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir.1991). An artist may employ copyrighted photographs in a new work that uses a fundamentally different artistic approach, aesthetic, and character from the original. See Cariou v. Prince, 714 F.3d 604, 706 (2d Cir.2013). An internet search engine can display low-resolution versions of copyrighted images in order to direct the user to the website where the original could be found. See Perfect 10, Inc. v Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir.2007); Kelly v. Arriba Soft Corp., 336 F.3d 811, 818–22 (9th Cir.2003). A newspaper can publish a copyrighted photograph 18 (taken for a modeling portfolio) in order to inform and entertain the newspaper’s readership about a news story. See Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 25 (1st Cir.2000). A viewer can create a recording of a broadcast television show in order to view it at a later time. See Sony Corp. of An. v. Universal City Studios, Inc., 464 U.S. 417, 447–450, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). And a competitor may create copies of copyrighted software for the purpose of analyzing that software and discovering how it functions (a process called “reverse engineering”). See Sony Comp. Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 599–601 (9th Cir.2000).
The doctrine is generally subject to an important proviso: A fair use must not excessively damage the market for the original by providing the public with a substitute for that original work. Thus, a book review may fairly quote a copyrighted book “for the purposes of fair and reasonable criticism,” Folsom, 9 F. Cas. at
