What writers need to know about fair use

Some things exist that may bring you comfort. And yet, you may not really understand how to use them. Examples include the airplane seat cushion that doubles as a flotation device; the home fire extinguisher stuffed into a kitchen cabinet; and the fair use legal doctrine.

In a previous post, I highlighted three copyright myths. In this post, I will try to explain the fair use defense to copyright infringement in a way that doesn’t require a law degree, as well as point you to online resources for further information.

What is fair use?

Fair use is a legal doctrine that recognizes that the owner of a creative work such as a photograph, book, article, song or movie, has exclusive claim to a bundle of intellectual property rights. However, there are times when portions of those creative works may be used by others without a license to benefit society.

Therefore, fair use may be an issue when the work of another has been used without permission or a license. Four factors are weighed to determine whether use without a license or permission is fair. These factors, like most legal tests, are imprecise and are accorded varying degrees of weight:

Here’s the official legalese:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
and the effect of the use upon the potential market for or value of the copyrighted work.

The purpose and character of the use

News commentary, criticism, and commentary are considered fair use. So too are uses that are transformative or parodies.

For a better understanding, it is helpful to look at actual cases. The Stanford University Libraries provides several instructive examples of fair use that fall under news commentary, commentary or criticism.

Three brief quotations from the Church of Scientology texts published on the internet by The Washington Post were deemed fair use. Thumbnail-sized reproductions of Grateful Dead concert posters incorporated into a book qualified as fair use. However, a book of trivia questions about “Seinfeld” was not considered fair use.

A new work that transforms a previously existing work might also be considered fair use. What exactly qualifies as transformative can be tricky. The Digital Media Law Project explains that it typically means that the new work must add to the original “with a further purpose or different character, altering the first with new expression, meaning, or message.”

When the Broadway musical “Jersey Boys” included a seven-second clip from “The Ed Sullivan Show,” it was declared a transformative use. However, aging “Catcher in the Rye” character Holden Caulfield and placing him in the present day wasn’t transformative and, therefore, not fair use.

Another use that may also qualify as fair is a parody. Parodies typically use humor or satire and are seen by courts as an important vehicle for social commentary.

When “Saturday Night Live” changed the song “I Love New York,” to “I love Sodom,” and only used four musical notes from the original song, it was an acceptable parody. However, a poem about the O.J. Simpson trial that imitated “Cat in the Hat” by Dr. Seuss did not qualify as a fair use parody because the satire didn’t target the children’s book, the parody targeted O.J. Simpson.

Nature of the copyrighted work

Whether the infringed work is nonfiction or creative also weighs into the inquiry. Because facts can’t be copyrighted, the factual nature of nonfiction makes it more likely that use was fair. Creative works typically get more intellectual property protection, meaning that fair use is harder to argue.

In some cases, whether a work is published may also play a role. The most common scenarios where this is an issue relates to secrecy before publication.

The amount of the work used

Perhaps one of the most frustrating things about this factor is that there is no such thing as a golden ratio or magic number that lets users know what is fair and what isn’t. The Digital Media Law Project notes:

Instead, courts look to how such excerpts were used and what their relation was to the whole work. If the excerpt in question diminishes the value of the original or embodies a substantial part of the efforts of the author, even an excerpt may constitute an infringing use.

In general, the smaller the amount of the work used, the more likely it will be deemed fair. Thus, thumbnail images used by search engines have been declared fair use. However, a news organization that used a freelance journalist’s photo posted on Twitter without permission did not constitute fair use. (Agence France Press v. Morel)

The effect on the market

This factor looks at whether the use is one that directly or indirectly helps a person, site or organization make money. If the infringement is for commercial use, it is more difficult to make a fair use argument. A use that isn’t meant to generate money has a better chance of falling under fair use.

However, even a noncommercial use can run into problems if it hurts the market for the original copyrighted work. As noted by Ashley Packard in the second edition of “Digital Media Law,” exchanging music files may not appear to be commercial. “However, file trading allows those who might have bought the work to avoid paying for it, so it does damage the copyright holder’s ability to exploit the market value of the work.”

Conclusion

First, if you’ve made it to the end of this post, congratulations! Second, you now know why lawyers answer, “it depends,” when asked a legal question.

Here are four fair use takeaways that can be helpful:

Minimize the amount of copyrighted material used. Try to take only what is truly needed.
Include meaningful commentary to your use or transform the work into something new.
Think carefully about the use if you plan to leverage it to directly or indirectly make money.
Ask the copyright owner for permission to use the work.

Finally, another excellent resource for writers, bloggers and content creators is the Electronic Frontier Foundation.

In my next media law post, I’ll discuss how Creative Commons licensing can be a solution when it comes to copyrighted work. In a future post, I’ll address how terms of service on social media sites can impact copyright.

If you found this post informative, please share it with someone else you think might find it informative.

In addition to blogging and writing, I’m also a lawyer who teaches media law. And because I’m an attorney, I need to provide this important disclaimer: This post is presented solely for information purposes and it is not legal advice. This post doesn’t create an attorney-client relationship with the reader. Please consult with a lawyer before you rely on this information.

Set against the backdrop of medical and technological advancement as well as corporate politics, Erasing the Past is a novel about love, betrayal, ambition, illusion, and second chances.