The Basics of Fair Use

Filed as Features, Guides on May 14, 2007 8:00 am

A recent study by professors at American University and Washington College of Law found that, though 76% of respondents said fair use allowed them to use copyrighted material, none of the 51 students involved could adequately define the doctrine.

The study went on to say that, though students were interested obeying the law, they were “making up rules themselves”.

Though the study’s small sample size limits its usefulness in drawing broader conclusions, it definitely points to a broader misunderstanding about fair use rights. These rights, however, are becoming more and more crucial as we step into the digital age and everyday citizens go beyond just consumers of published content, but also creators and users.

The explosion of new people creating and distributing new content makes it more important than ever for individuals to understand copyright law, especially fair use, and it is worth taking a few moments to really understand the law.

What is Fair Use

Copyright, which is affixed to a work the second it is placed in a “tangible medium of expression“, gives the copyright holder, usually the creator, certain exclusive rights to the work.

For example, only the copyright holder of a work has the right to make copies of the work, prepare deriviative works based upon it or perform/display the work in public.

The doctrine of fair use is designed to place a limitation on those absolute rights and weigh them against the needs of society. Fair use, in short, allows copying of copyrighted materials in certain, limited, situations.

However, determining when a situation may be considered fair use is a tricky matter. There are no hard and fast rules for what is and is not fair use, just a set of guidelines that have to be applied on a case-by-case basis.

The Four Factors

When trying to determine if a use is likely to be considered fair, the four factors to be considered are:

  1. the purpose and character of your use
  2. the nature of the copyrighted work
  3. the amount and substantiality of the portion taken, and
  4. the effect of the use upon the potential market.

The first factor, which is the one that the Supreme Court has said carries the most weight, deals with whether or not the use is “transformative”. In short, transformative use is a use that creates something new, rather than simply creating something intended to substitute for the original. An example of this would be copying quotes from a novel for a book review or creating a parody of a work.

The second factor deals mostly with whether or not the work is published or unpublished. If the work is unpublished, the scope of fair use is much more narrow than with a published one since copyright law holds that authors have the right to control the first appearance of their work.

The third factor simply states that the less one copies, the more likely the use is to be found fair. However, even small uses can be found to be infringing if the portion copied is considered the “heart” or the most memorable part of the work. On the other hand, in some cases, using the entirety of the work is acceptable if it is necessary for the intended use.

The fourth and final factor deals with the potential harm the use does to the market for the original work. It’s important to note that, even if a use does not directly compete with the original work but exploits a potential market for it, then this factor can still weigh against the person doing the copying. The fourth factor, much like the first, is generally given more weight in court decisions.

To all of this gets added a subjective “fifth” factor that basically asks if the use is ethical and moral. Since judges and juries have a large amount of leeway in determining what is and is not fair use, they can easily justify finding a use to be infringing if they are morally outraged by the actions of the copier. Similarly, a person who is altruistically using a work in a way likely to be found infringing might have their use determined to be fair.

The “fifth” factor is just an example of exactly how fluid and subjective fair use really is. Two judges can look at the same set of facts and rule in completely opposite manners. Case history is filled with such examples.

Conclusions

The problem with fair use is that there are no hard rules and, though the four factors can provide a great deal of insight as to what kind of use is fair, the end decision is left up to a judge or a jury.

Even worse is that fair use is an affirmative defense, meaning that the onus to prove that use is fair generally falls on the defendant being sued for infringement.

All of this makes fair use a very vague and very scary section of copyright law. It is also why, when there is any doubt about a use, it is almost always a good idea to first get permission of the copyright holder before engaging in any questionable use. This can take the form of either direct consent or of a Creative Commons license.

If you do have to rely upon a fair use defense, take only as much as you absolutely need, make sure that your use is transformative and be sure to attribute your sources carefully. Though attribution does not guarantee that the use is fair, it is weighed into several of the factors.

The bottom line, however, is that fair use is a very narrow doctrine and most of what people consider to be “fair” is, in truth, not. It is important to keep that in mind when trying to determine if your use is fair or not.

With matters of fair use it is almost always better to play it as safe as reasonably possible.

Note: I am not a lawyer and nothing in this article is to be taken as legal advice. Though it is based upon extensive research into fair use, it is not to be taken as legal truth. If you have a question about fair use, it would be best to take it up with an attorney.


Jonathan Bailey writes at Plagiarism Today, a site about plagiarism, content theft and copyright issues on the Web.

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  1. By Dave Butler posted on May 14, 2007 at 10:08 am
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    Thanks for posting. What I see often and what I am most interested in is fair use in regard to photos. I’ve seen some blogs publish photos from various new organizations. They give credit for the photo and the blogs seem to think that is enough to release them from any copyright issues. I’m thinking that is not enough.

    Any ideas on how you can use news photos in a fair use manor on blogs?

    Thanks.

  2. By Jonathan Bailey posted on May 14, 2007 at 11:12 am
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    Dave,

    It’s a difficult question for a lot of different reasons. Using an entire work can be considered fair use if the entire use is required for the intended use. Photographs are an excellent example of that since they are often difficult to crop or useless when just a small portion is used.

    The real question comes down to how the photo is being used. There is a BIG difference between using the photo as a small portion of a much longer work than simply reposting the image.

    For example, using a thumbnail of a copyrighted photo as an illustration for a lengthy article is much more likely to be considered fair use than simply reposting the photograph.

    As with all fair use issues, there is no “silver bullet” to ensure that you are using a work fairly, but I would take several steps to safeguard myself if I were in such a position. First, I would use a smaller version of the image and link to the original article containing the full image. Second, I would ensure that the photo was a very small in proportion to my original content. Third, I would obviously give credit where it is due.

    As the Perez Hilton/X17 case has shown, there is a lot of room for interpretation about where fair use falls when dealing with photos. I am following that case closely as the outcome of it as it will likely have a major role in defining the lines for fair use when it comes to publishing photos on the Web.

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  4. By billg posted on May 14, 2007 at 6:28 pm
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    I’d suggest that news agencies certainly don’t agree that anyone has a right to publish one of their photos if they did not buy it from the agency.

    In most cases, a blogger is going to copy a photo published by a source that purchased it from an agency and uses it under license from that agency.

    Most likely, the only thing that has kept bloggers from being sued for copyright violation is the cost and hassle factor of suing singleton bloggers. Also, some agencies may honestly not care if non-commercial personal sites with miniscule readership grab an image now and then.

    Remember, too, that a credited photo used on a commercial site that happens to publish using a blog format was almost certainly purchased and on the up and up. Personal and noncommercial bloggers cannot blindly emulate what we see those commercial operations doing.

    The courts will be largely indifferent about the tools and the software someone uses to publish. They will see the act of making unauthorized copies of copyrighted photos on the web and publishing them on a blog as equivalent to making unauthorized copes of photos in newspapers and then publishing the copies in your own little newspaper. If you can’t make a fair use case in one kind of publishing, you probably can’t make it in another.

  5. By Jonathan Bailey posted on May 14, 2007 at 8:12 pm
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    Billg,

    Well put on all accounts. I definitely agree that if you can’t make a fair use case in one format, it won’t work in another. Very well said.

  6. By Maria posted on May 15, 2007 at 12:00 pm
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    Thanks for the article. Very clear and easy to understand.

    I’d like to see a future piece on how “fair use” can be used as a defense when the copied content is used for splogging. The Copyright statement on my Web site clearly states that no material from my site can be used on other sites that aggregate content for the sole purpose of attracting readers for AdSense (or other pay per click) advertising revenue or to boost Google (or other search engine) rank.

    I guess my question is: can a copyright holder make an enforceable statement prohibiting certain use of her work?

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