What Is Fair Use?

by Team eLocal
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Reviewed by Carina Jenkins, J.D.

Creating and sharing your content can be a fun hobby or a source of income. The internet makes sharing content easier than ever, and it can be exciting if people like your work. However, you could find yourself in legal trouble if there's a dispute over the ownership of the material.

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Learning about copyright and fair use laws can help you understand your rights when creating content or sharing materials with others.

What Is Fair Use?

The term “fair use” refers to the fair use doctrine of U.S. copyright law that gives people the right to use portions of copyrighted materials for limited purposes.

What Is Copyright?

Copyright laws give creators exclusive rights to their materials, including the rights to reproduce, perform and create derivative works. The protections of copyright laws apply to all media, including written materials, songs, videos and artwork.

If someone copies or infringes on a copyrighted work, the owner can file a lawsuit. The lawsuit may demand an end to the infringement and ask the violator to pay monetary damages to the owner.

How Does the Fair Use Doctrine Impact Copyright Law?

Fair use is essentially an exception to copyright protection. The fair use doctrine allows creators to use portions of another person's work under certain circumstances.

When Does It Apply?

The fair use rule is good news for creators who want to make parodies or borrow small portions of another person's work. However, understanding when fair use applies can be tricky. Despite its long history, fair use remains the subject of many lawsuits.

Courts will consider several factors when deciding whether the use of a copyrighted work falls under the fair use doctrine, including:

  • Nature and purpose of the use: Parodies, reviews and educational uses are more likely to be protected than purely commercial uses.
  • The nature of the copyrighted work: A work that pertains to public interests or that's newsworthy is more likely to be subject to fair use.
  • Amount and substantiality: Using a substantial part of a work is less likely to be protected by fair use. While you may be able to quote a paragraph from a book in a review article, you probably can't republish most of the book in your publication. However, there's no black-and-white rule on how much is too much.
  • Impact on the value of the original work: The U.S. Supreme Court has held that fair use doesn't protect material that simply duplicates or serves as a replacement for the original copyrighted work. Courts also examine whether the new work harms the value of the original. For example, new content creators can't ignore the licensing requirements when a market exists for licensing some of the original content. However, courts do realize that negative reviews or critical parodies can have a negative market impact on the original material, and these works remain protected by fair use.

If a copyright dispute over fair use goes to court, the judge must consider these factors together. Judges look at fair use issues on a case-by-case basis but try to apply the above factors consistently.

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What Are Some Examples of Fair Use?

While fair use law can be confusing, seeing some examples of when the fair use doctrine applies can help. The following categories and examples illustrate content more likely to be protected by fair use law:

  • Parodies: Sketch comedy shows referencing or ridiculing a popular movie during a skit tend to be covered by fair use. Individual comedians and comic artists enjoy similar protections for parodies. However, creators need to be cautious not to merely recreate a funnier version of the original material.
  • Criticism and commentary: For example, a movie reviewer may use quotes, audio and video clips while commenting on the film.
  • News: Someone may quote another's speech or publication to share news about a topic.
  • Education: Fair use often covers materials shared within a class for educational purposes. For example, a teacher may be able to copy a short portion of a book for students or display a copy of a famous painting for discussion. However, an educational setting doesn't provide absolute protection, and a teacher can't photocopy an entire book to share with the class.
  • Research and building on the works of others. For example, a graduate student writing a new paper might include a diagram from another person's research article.

How Do You Stay in Line With Fair Use Laws When Making Online Content?

Sometimes the best content uses bits of existing work, but you want to avoid having someone demand you remove your content or worse. Navigating fair use laws is tough, but there are some steps you can take to prevent problems.

First, consider how much of the original work is used. For example, a short audio clip is less likely to cause problems than including an entire copyrighted song in your video.

Next, think about your content's purpose. Your podcast reviewing and criticizing a book is likely protected when you include some direct quotes from the book. However, you could be in trouble if you're using images from a movie to advertise your business.

If you don't know how fair use will apply to your content, you may want to speak with a copyright attorney for more information. As with all legal topics, laws may vary between states and jurisdictions.

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