The fair use doctrine: When use of copyrighted material is acceptable

When kids complain, they often say that something is not fair. Like that it’s not fair that they have to share their favorite toy with a sibling. The response by parents, let’s say it together, is “Life is not fair.”

Well, that is true to a certain extent. Life isn’t fair. But most, or at least many people, have a strong innate concept of fairness and try to abide by that. The law seeks to capture this desire for fairness. Those who create works of literature, music, and art, among other things, can have their work protected by intellectual property law.

When protected properly, the creators of new works hold the rights to decide who can and cannot reproduce them and can make a great deal of money doing so. Those of you who watch ABC’s Shark Tank know that Kevin O’Leary, aka “Mr. Wonderful,” loves to make money with licensing fees. If you hold the copyright to a certain artistic design for instance, you can allow others to reproduce it for a certain period of time and have them pay you a licensing fee for this permitted use.

What is fair use?

The U.S. Copyright Office gives some insight into fair use doctrine. First, let’s go back to the example of a child complaining about having to share a toy. The child owns a toy, but the parent wants to limit the tight hold of use of the toy for the sake of peace in the household. So to be fair, the parents allow another sibling some time to play with the toy and also may let a visiting neighborhood child use the toy for a limited period of time.

Over time, the courts have decided copyright cases applying the same concept. There isn’t one easy definition of fair use, however, some fair use guidelines help determine if fair use is applicable in a certain case.

Copyright fair use is a limitation on the rights by a copyright owner to keep others from reproducing or using their work. This limitation on the tight hold of those rights is a way for the law to acknowledge that sometimes it’s not fair to allow the owner of the work to restrict its use. Let others play with it too. Often that use pertains to the public good.

Courts have found that it is fair to allow use of a copyrighted work in six certain circumstances.

1. Criticism
2. Comment
3. News reporting
4. Teaching
5. Scholarship
6. Research

Public domain & Creative Commons

It’s often confusing looking at different ways that copyrighted works can be used. Let’s distinguish fair use from two commonly known ways to use others’ creative works.

Fair use does not mean that the copyrighted work is in the public domain. If an image or book is in the public domain, it means that the work no longer has copyright protection. Anyone can use it for free. The work is there in the public domain for the taking.

Because of photography websites like Flickr, more people have become aware of the Creative Commons licensing tool. Some believe an image found online is not subject to copyright. That is not true. Most images found online are subject to copyright restrictions. Flickr allows the people who create the photographs found on the site to set certain restrictions for anyone who wants to use their images.

Fair use is not the same as Creative Commons. When fair use applies, the copyright holder is generally not giving permission for their creation to be used by others. However, often a legal dispute has taken place where copyright infringement was alleged. In this dispute, a court has found fair use, so the claim of copyright infringement will be denied. Fair use is a defense to an allegation of copyright infringement.

Fair use copyright

When courts make a fair use determination, they look at four factors.

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

The public good & enjoyment

Looking at the four factors used to analyze a fair use decision and the six circumstances where fair use is often allowed, there are similarities and themes.

The six circumstances all relate to teaching, learning and informing the public. These things are encouraged by society and the law seeks to as well.

A teacher who copies a passage from a book to talk about it in class should not have to worry about copyright infringement. However, that is different from a teacher copying an entire book and selling the book to each of her students for class.

Here, we would look to the four factors. The teacher would profit from the sale of the book. She copied the entire book, not just a portion and selling the book could impact the potential market for the book. In this case, there might be a case of copyright infringement that would not be defended by fair use.

Some of our entertainment is allowed, because artists are allowed to show humor through parody. Skits on Saturday Night Live have defended against copyright infringement allegations based on fair use of copyrighted works.

However each case is different. Singer Weird Al Yankovic often obtains permission from artists before doing a parody of their song. Before using a copyrighted work, looking at how a court may determine fair use can be helpful, but often it’s best just to get permission first.

Unsure if your work would be considered “fair use?” Talk to an independent lawyer through the LegalZoom business legal plan.