What Is Fair Use?

You see a photo on Google that would be a perfect illustration for your how-to blog post. You see that other sites have used it, too, so it should be OK to simply republish, right? Not necessarily.

“Available online does not make it public domain,” cautions Thomas Varnum, an intellectual property attorney in Wilmington, N.C. “And just because you found something on Google Images and it was just really easy to use, it does not make it fair to use.”

Defining the Fair Use Doctrine

Under what is called the “fair use” exception, the law does allow the use of someone else’s copyrighted work, such as a song, a photograph, a painting, literature, or other types of expressive work, without their permission. According to U.S. copyright law, reproducing a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Determining whether your intended use qualifies as fair use can get complicated. The first step is to determine whether the original work is protected by copyright. Generally, works published over 94 years ago or 70 years after the author’s death are in the public domain and can be used freely. These timelines exist due to Disney’s extensive lobbying to protect its intellectual property rights in Mickey Mouse. After that, several factors need to be considered. “It’s kind of messy for older works,” Varnum says, “but if it’s something that was created in the last 30, 40, 50 years, you should assume, as long as it is an expressive work that would qualify for copyright protection, that somebody owns the copyright interest.”

Using images online is a common point of contention in fair use cases. If the image is under a Creative Commons license, it is free to use, share, and adapt the material as long as Creative Commons attribution is given. Other licenses are more restrictive, which is where people tend to get into trouble.

“If you’re sued [by the copyright holder], it will cost you tens of thousands of dollars for me to prove you didn’t have to buy a $2,000 license in the first place,” he says. “So maybe ask for a license if you think you can get one for a reasonable price because it will be cheaper than defending a lawsuit.”

For copyrighted material, the Copyright Act considers four key factors to establish fair use, “but a whole lot of case law goes into how you apply those four factors of fair use,” Varnum says. “And it is inherently a case-by-case, hard-to-predict analysis, so it is notoriously fact-sensitive.”

1. First Factor. The purpose and character of the use (such as nonprofit versus commercial use);
2. Second Factor. The nature of the copyrighted work (fact or fiction, for example);
3. Third Factor. How much of the original work is used (also called substantiality of the portion used); and
4. Fourth Factor. The effect of the use on the potential market value of the copyrighted work.

“All of the factors matter,” Varnum says, but it’s the first, the nature and purpose of use, that tends to be the most important one. “You can’t just repurpose or repackage the original and not really transform it into a new work that’s substantially different.” An example of transformative fair use is parody, which takes an underlying work and transforms it to create some sort of commentary. On the other hand, putting someone else’s lyrics to your own music would likely fall under copyright infringement.

Factor 1: Purpose and Character of the Use

The first factor the court considers in its fair use analysis is how the work is used. Was the material copied without being changed or transformed into something new? The court is more likely to approve the new use if it adds value, offers a new perspective, conveys meaning, or fosters transformation. It is up to the court to determine how much change is required for the new material to qualify as transformative.

Factor 2: Nature of the Copyrighted Work

The second factor the court considers is the nature of the work. It considers whether the work is factual or creative and expressive. It also looks at whether the work is unpublished or published. The court will provide broad protection to highly creative works, like artwork, literature, photos, and film. 

The court will give narrow protection to purely factual work. Generally, the court takes the opinion that sharing facts and information benefits the general public. They are also verifiable by outside sources. This warrants less protection than purely creative works that are solely the invention of the copyright owner. Published work will also generally have greater ease of arguing fair use than unpublished work. 

Generally, the court will give the original artist or author the right to choose how their work is first published. So someone taking unpublished work, using it, and publishing it, is taking that away from them.

Factor 3: Amount and Substantiality of the Portion Used

The less of the original work that is taken, the more likely the court is to rule in favor of fair use. However, even a small amount can invalidate fair use if the piece taken is the “heart” of the work. The court will consider the amount of a work and the duration of the original work in relation to the overall situation. A brief use of an element could be ruled not fair use if the element was the most distinctive portion of the work.

This can lead to significantly different outcomes in fair use court cases. For example, an entire work was ruled to be permissible because it was used in a thumbnail for search engine results. In contrast, a small element that was taken from a larger work was ruled not fair use because that one element was the central focal point of the work. Courts focus on necessity: using more than required for commentary weighs against fair use.

Factor 4: Effect on the Market

Another important factor is the effect the new material will have on the market. A court is more likely to rule against a finding of fair use if the new material directly competes with the original work in the same market. 

The goal is to protect the original material’s owner by preventing unfair market competition. This is likely to happen if the new material can substitute for the original, harms the market for derivative works, and poses a potential threat to future financial benefits. Even transformative uses can fail if they interfere with the rights holder’s revenue streams.

Examples of Fair Use in Practice

Though the cases that make their way to court are often less straightforward, the recent U.S. Supreme Court decision in Andy Warhol Foundation v. Goldsmith goes a long way to clarify what is and is not fair use.

At issue was a portrait of Prince taken by famed photographer Lynn Goldsmith, which artist Andy Warhol then used to create 16 images. One of the images ran in Vanity Fair in 1984, for which the magazine paid Goldsmith a $400 licensing fee. After Prince died in 2016, the magazine paid the Warhol Foundation $10,250 for the use of a different image in the series but did not pay Goldsmith.

In a 7-2 decision, the Court said the photographer was entitled to copyright protection because the new use was both similar and commercial.

Fair Use Myths

Although the fair use exception as written in the statute seems fairly straightforward, there are no bright-line rules.

Graubart says people believe many myths about fair use that he can quickly dispel. For example, anything for non-profit educational purposes or that is used for under 30 seconds is OK. However, if the school is for-profit, it isn’t an educational use; it’s for the school’s profit.

“It entirely depends on context,” he says. “The ones that are very clearly fair use are something along the lines of [being] clearly parodic. ‘I’m mocking this thing, not using it to mock something else. I’m literally making fun of you.'”

For example, there was a case involving the book The Wind Done Gone, a retelling of Gone with the Wind from the perspective of slaves. The estate of Margaret Mitchell alleged copyright infringement. “They said, ‘We never would have given permission for this.’ The response was, ‘Yeah, that’s the point. This is core free speech. You never would have given permission for this.'”

Even a case that seems clear now was muddy at the time. “It was a hugely important decision when it came down in 2000, because nobody was sure,” Graubart says.

Another common myth is giving credit. Simply attributing a copyrighted work does not make it fair use. For example, if you download an image from a website and reuse it with credit to the photographer, you haven’t met the fair use standards. “It’s not a real part of the analysis,” Varnum says. “And actually, there are some potential risks with doing that when it comes to other laws, like right of publicity, if you put somebody’s name on what you’re doing and you didn’t have their permission.”

“One that I often see is a misconception that the morality or the bad faith versus good faith is really important,” Varnum says. While it sometimes bleeds into arguments, it’s not a legal element in establishing fair use.

When Fair Use Is Not a Defense

There are times when fair use is not a defense against infringement of intellectual property rights. While courts make rulings on a case-by-case basis, these include situations where the use is purely for profit and there is no transformation. These include uses where the new work replaces the original in the current market. These include uses when the infringing use entirely copies the original creative work without legal justification. These include uses that involve published materials.

It’s generally a good idea to avoid using copyrighted videos, images, and songs in commercial uses without proper licensing. Don’t republish images found on Google without proper permission and licensing. Avoid uploading and publishing entire articles or chapters from a book.

Get Legal Advice

If you’re hanging something on your own wall, that’s one thing. If you’re engaging in commercial activity, then you should speak to a lawyer.

The fair use doctrine permits the use of copyrighted material for certain purposes, but it has limits that are often unclear. If you have any questions about the use of a copyrighted work in a commercial or noncommercial setting, don’t hesitate to reach out to an experienced IP lawyer.
Whether you’re unsure if fair use applies to you or you want to protect your own copyright, an experienced intellectual property attorney can help.