Is it copyright infringement to quote a review of your product in an advertisement?

The internet has created an unprecedented volume of product reviews and feedback. Some product reviews are positive some are negative. When a company wants to advertise the quality of its products frequently the company wants to republish positive reviews of its products to demonstrate that its products are superior to competitor’s products. This leads to the question of whether republishing a positive product review infringes on the copyright of the review’s author. Does the doctrine of fair use permit a company use positive product reviews in the company’s advertisements?

In the case Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044 (2d Cir. 1983) the Second Circuit for the United States Court of Appeals held that republishing products reviews in advertisements is fair use.

In that case the plaintiff, Consumers Union of U.S., Inc. published a magazine called Consumer Reports. The magazine that provided consumer information about products and services, including household items. The plaintiff alleged that defendants, manufacturers and sellers of vacuum sweepers, infringed on the copyright Consumers Union held in an article when the defendants quoted the article in television commercials for vacuum sweepers. The defendants quoted the article without plaintiff’s authorization. Both television commercials stated that the defendant had no affiliation with the plaintiff and that the plaintiff was not endorsing the products. The district court granted a preliminary injunction finding that there was copyright infringement. Defendants appealed the district court’s grant of a preliminary injunction to the Second Circuit. The Second Circuit reversed the district court and vacated the preliminary injunction, holding that defendants’ use was a fair use.

The in the Second Circuits decision it evaluated the four factors used to determine if fair use applies:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non profit educational purposes;

The court found that although the purpose of defendant’s use of the plaintiffs article is undoubtedly commercial, this fact alone does not defeat a fair use defense. The core of the criterion, is purpose and character of the use. In this case the ads were intended to convey factual information which is more conducive to the concept of fair use.

(2) the nature of the copyrighted work;

The Second Circuit found that the article by the plaintiff was primarily informational rather than creative. Because the risk of restraining the free flow of information is more significant with informational work, the scope of permissible fair use is greater. Facts cannot be copyrighted. The plaintiff cannot prevent the defendant from accurately reporting facts contained in the article.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The Second Circuit found that the ads used 29 words out of a 2100 word article so use was insubstantial.

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

The Second Circuit stated that the fourth factor is aimed at the copier who attempts to usurp the demand for the original work. The theory behind the copyright laws is that creation will be discouraged if demand can be undercut by copiers. Where the copy does not compete in any way with the original, this concern is absent. Because the ads did not interfere with the value of the copyright article, this factor favored the defendant.

The Second Circuit did not definitively state that manufactures are allowed to completely copy and republish reviews of their products, but based on the facts surrounding this case, quoting positive reviews in advertisements are considered a fair use.

Fair use is a fact specific analysis. If you have questions about whether your use of positive product reviews in your advertisements in fair use it best to consult with an experienced copyright attorney to advise you.