Table of Content

What is fair use?

Four factors That determine whether or not it is a fair use

The Best Practices to Avoid Violations of Fair Use

What is fair use?

Fair use, in its broadest sense, is any copying of copyrighted materials done for a limited, “transformative” purpose, such as to comment on, critique, or parody a copyrighted piece. These uses are possible without the permission of the copyright owner. Fair use is a use that does not constitute an infringement.

What is a “transformative use”? This definition may seem ambiguous or vague. Millions of dollars have been used on legal fees to try and define fair uses. Because the judges and legislators who created the fair usage exception didn’t want to limit it, there are no clear rules. There are only guidelines and court decisions. 

Commentary and Criticism

Fair use principles permit you to copy some of the work if you’re commenting on or critiquing a copyrighted piece, such as a book review. You can comment on or critique the following:

  • In a music review, I quote a few lines from Bob Dylan’s song.
  • Summarizing and quoting a medical article about prostate cancer in a news story
  • You can copy a few paragraphs of a news article to be used by students or teachers in a lesson.
  • Copying a section of a Sports Illustrated article to be used in a court case.

This rule’s basic purpose is to ensure that the public benefits from your reviews. You can do this by including copyrighted material. 

Parody

Parody is when a work ridicules or imitates another well-known work in a humorous way. Judges are aware that parody requires some taking from the original work to be parodied. Unlike other fair uses, parody is allowed to make extensive use of the original work.

There is no clear cut to determine whether a specific use is fair under the law. Each case is unique and will determine whether a particular use is fair. A court will consider the following factors when deciding whether a specific use of a work is fair. Below is a brief discussion of each one.

four factors That determine whether or not it is a fair use

There is no clear-cut way to determine whether a specific use is fair under the law. Each case is unique and will determine whether a particular use is fair. You cannot simply base your conclusion on whether the use is educational or commercial. 

It is important to assess, apply, weigh, and balance the nature, quantity, and value of copyrighted works. Flexibility in fair use is crucial for the law to be able to adapt to new technologies and meet the innovative needs of higher education. While not all factors must be weighed in favor or against fair usage, the overall effect of the factors will tend to lean in one direction or another. 

A court will consider the following factors when deciding whether a specific use of a work is fair. You must consider all four factors when determining whether or not a use is fair:

Factor 1. The Purpose & Character of the Use

The first factor played an important role in fair-use determinations. Recent cases have shown that this role has become more important and may even be the main reason for fair use. First, we need to decide whether the use is commercial or educational. This analysis seems simple enough. 

Over the years, however, a new factor called “transformative usage” has been added to the first factor. Transformative uses add value to the work and are not intended to replace it. It is almost always considered fair if the use is deemed to be transformative. This is an evolving area of law, which has made the already complicated doctrine of fair usage even murkier.

Factor 2. The Nature of the Copyrighted Work

This factor, is the easiest to assess of the four fair usage factors. Fair use is more likely if the copyrighted work is more creative. Thus if the work is fiction, this factor favors the copyright owner, but if it’s a factual work, it favors a fair use finder. This factor also takes into account the publication status of the work. Unpublished copyrighted works are less likely to be fair use.

Factor 3: The Amount Use

This factor takes into account the amount of copyrighted material that was used relative to the total copyrighted content. If the amount of copyrighted material used is small, this factor favors fair use.  On the other hand, if the amount used isn’t insignificant in comparison to the copyrighted works, this factor favors the copyright owner.

Here are some important points to remember:

  • This factor considers not only how much was used quantitatively but also how much was used qualitatively. This means that even though the amount used is small, it will be considered a factor in determining fair use.
  • In the past, fair use of entire works was not considered fair. Recent cases have called into question this principle.
  • The amount used is compared to the copyrighted works and not to the alleged infringing works. This factor does not care if the amount used is a small percentage or large portion of the alleged infringing works.

Factor 4. The Impact of the Use on Market

The Impact of the use on the market has historically been the most important. This may not be true anymore, as recent court decisions have been more focused on whether the use is “transformative” under this first fair use factor. This factor considers not only whether the defendant’s actions may harm the market but also whether the use may cause harm to potential markets that could potentially be exploited if the use was widespread.

The Best Practices to Avoid Violations of Fair Use

Now that you understand the four factors of fair use, here are strategies you can use to ensure that your content does not violate the Fair Use Guidelines.

  • Be original. Make sure that your content isn’t a copy of the copyrighted material you are using. Your creativity can be used to create a completely new message.
  • Do not try to make a profit from content that you don’t own. You should not use the work of someone else without their permission. Educational or non-profit use is your best option.
  • Limit yourself to the copyrighted material that you include in your content. Shorter excerpts will help you to emphasize your original message and not make your work revolve around it. Your video should not be influenced by anyone else’s work.
  • You can reverse roles.  You should not use someone else’s protected work if it is too similar to steal views or revenue. Take your content in a different direction.