A copyright owner has certain rights to his or her work—with some exceptions, the owner of the copyright is the only one who can reproduce, display, or otherwise share his or her work with the public. Fair use is one of those exceptions.But what exactly does “fair use” mean? And how do you know if you’re using something fairly or not? Fair use is a commonly misunderstood area of copyright law, and with so much conflicting information out there, it’s easy to be confused. Let’s look at what the law actually says.
Putting the “Right” in Copyright
A copyright owner generally enjoys the privilege of being the sole person in the world with the legal right to:
- make copies of it
- distribute copies of it
- if it’s an image, display it in public
- if it’s a play, perform it in public
- if it’s a recording, play it in public (or for the public, as in a podcast or similar)
- Create a derivative work of it
(A derivative work, of course, is something that is based on or incorporates another work: a sequel to a book, for instance, or a movie based on a comic book.)
Fair Use = Exception to Infringement
Generally, if someone does any of those things without authorization from the copyright holder—distributes copies of a copyrighted movie, uses a copyrighted image on a blog, or uploads a copyrighted video to YouTube, to name a few examples—it’s considered copyright infringement.
Fair use, however, is a special case where you can exercise those rights without permission to do so—and it isn’t considered infringement. There are many, many infringement suits every year, and fair use is a commonly used defense to those claims. However, it is not always effective. Fair use is not a clear-cut legal defense. It is determined on a case-by-case basis by the courts, when necessary, and the outcome of each case is decided on the merits of that case. Copyright law specifically states that “reproduction . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright,” but those terms are not clearly defined.
To paraphrase Title 17, Chapter 1, §107, when determining whether a work can be considered fair use, the courts will look at four factors:
- The “purpose and character” of the unauthorized use
- The nature of the work itself
- The relative amount and “substantiality” of the work being used
- The effect the unauthorized use can have on the copyright holder’s ability to profit from the work
Not any one of these factors can carry the weight for the entire case; each must be examined in order to have a complete understanding of the unauthorized use and to make a judgment on whether or not it falls under the scope of fair use. Let’s look further at each factor.
1. Purpose and character
Whether the person was using the work for a commercial use, for financial gain, or not will be considered by the courts when making a ruling. As far as character, the courts will look at whether or not the work was transformative in nature—or in other words, if the unauthorized use has transformed the original work into a new one with a new message, purpose, or similar. (The Organization for Transformative Works has a great Q&A-style resource for further exploration of this topic.)
2. Nature of work
The nature of the work refers to whether the work used without permission is factual, meant to inform, or fictional, requiring creativity on the part of the author. Again, no one factor is all-important when looking at fair use, but remember that a transformative use will be more likely to be considered fair use than a straight copy of the work, regardless of its nature.
3. Amount and substantiality
You may have heard that there is a certain percentage of a work, across the board, that marks the boundary between fair use and copyright infringement; this is not necessarily the case. This idea originated as a guideline for academic uses, but it is not applicable to every case, and it is not supported by copyright law.
Instead, it is a better rule of thumb, in the case of parody or criticism, to use no more of the work than you have to in order to make your point. The amount of the work used, relative to the whole, is important in determining fair use, but that percentage is not a fixed rule and is not held by the courts to be an indication of fair use.
4. Effect on market/copyright holder
This factor tends to carry the most weight in fair use decisions. Just as it sounds, this looks at how the unauthorized use may have affected the market for the original work and the copyright holder’s ability to make a profit from that work.
For example, if I hosted a copyrighted digital album for free download, the fact that I am not making money off the download is not especially important; the fact that I am taking potential sales away from the owner, however, is.
Another example of this is in the case of Harper & Row v. Nation Enterprises (1985), when a small portion of President Ford’s memoirs were released without permission. The third factor seems to lean toward fair use—less than 1% of the material was used—but the fourth factor came strongly into play in this case: the publishers of the book had intended another magazine to be the first to publish excerpts of the material, and after the leak, that magazine pulled out of the contract (because, after all, they lost the value of “first publication”). As a direct result of the unauthorized use, the book publishers lost a great deal of money when they lost that contract.
So how can you ever be sure if your use will be considered fair?
The takeaway from this article is: You don’t. Keep an eye on the above factors. Even if you believe your use to be clear-cut fair use, such as parody or commentary, the safe choice is to use no more of the original work than you absolutely must. Fair use cases are decided by the courts. In order to be 100% certain that your use would not be considered copyright infringement, it’s always the safest route to obtain permission from the original user whenever possible—and when it isn’t possible, carefully consider your options. If you aren’t sure if your use will stand up to the factors involved in fair use, it might be the best decision not to use it.
[Recommended Reading: Copyright Cases You Need to Know]