The Fair Use Doctrine: What It Means and What It Doesn’t Mean

Óðinn at the English language Wikipedia [GFDL ( or CC-BY-SA-3.0 (], via Wikimedia CommonsCopyright law protects original creative works by prohibiting anyone but the copyright owner from publishing, displaying, distributing, adapting, and profiting from a copyrighted work. This applies to a wide range of creative works, including books, articles, photographs, drawings, designs, and software code. The use of a copyrighted work without permission can result in serious legal penalties. Freelancers, as a general rule, should assume a work is copyrighted unless they can determine otherwise.

The most obvious way to use a copyrighted work is by obtaining the copyright owner’s permission. Since this usually involves paying a license fee and, in some cases, royalties, most freelancers want to find works they can use for as little money as possible, and preferably for free. Works in the public domain, as well as works that are covered by a public copyright license, are available. The Fair Use Doctrine allows people to use copyrighted materials, but only in very specific circumstances.

What is Fair Use?

The two most important things to understand about Fair Use are that (1) it is an exception to copyright protection; and (2) specific examples of Fair Use come from cases in which a copyright owner sued someone, and a court determined that no copyright infringement occurred because of Fair Use. This is not intended to scare anyone, necessarily, but it is important to know that Fair Use is a complicated area of law.

Federal law, as opposed to state law, governs copyrights. The Copyright Act of 1976 does not give a distinct definition of Fair Use, although it notes that certain uses of copyrighted material, such as “criticism, comment, news reporting, teaching…, scholarship, or research” is not copyright infringement. Generally speaking, the following types of use are considered Fair Use:
– Criticism and commentary
– Parody
– News reporting
– Research and scholarship
– Nonprofit educational purposes, usually within the classroom

The Copyright Act identifies four factors that courts should consider. These factors form the basis of any useful Fair Use definition:

(1) the purpose and character of the use, including whether such use is of a 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; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Let’s take a look at each of these factors.

1. Purpose and Character of the Use

This is probably the most important of the four factors. In order to qualify for Fair Use, a person must use the copyrighted material in a “transformative” way, rather than a “derivative” way. Folsom v. Marsh, an 1841 Massachusetts court case that is considered to be America’s first Fair Use case, dealt with a two-volume biography of George Washington that copied 353 pages from someone else’s twelve-volume biography. The court described the two types of use that would come to be known as transformative and derivative:

[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy …

A use that criticizes the copyrighted material, offers commentary on it, parodies it, or reports on it as a matter of public concern would likely be considered transformative. A use that merely reprints or republishes a copyrighted work without building on it in any way would probably be deemed derivative.

2. Nature of the Copyrighted Work

Certain features of a copyrighted work may affect the extent to which they could be subject to Fair Use.

– Works of non-fiction, or works that depict actual events, are often more likely to be subject to Fair Use than works of fiction.

– Works that depict issues of public concern may be more likely to qualify for Fair Use. For example, Time magazine purchased Abraham Zapruder’s film of the Kennedy assassination in 1963 and registered a copyright. A book about the assassination, published in 1967, contained stills from the film. Time sued the author and publisher, but in 1968 a federal court declined to enforce Time’s copyright on public interest grounds in Time v. Bernard Geis Assocs.

By ∑ssarege∑ (talk).Essaregee at en.wikipedia [Public domain], from Wikimedia Commons

3. Amount Used by You

The Folsom case, mentioned above, suggests that the use of a small portion of a copyrighted work is more likely to qualify for Fair Use than the use of a larger portion. This is often true, but some cases have allowed copying or re-publishing of most or all of a copyrighted work under certain circumstances:

– In 1980, the Court of Appeals for the Fifth Circuit, which covers Texas, ruled in Triangle Publications v. Knight-Ridder Newspapers that a newspaper did not infringe TV Guide’s copyright by reprinting covers of certain issues of TV Guide in their entirety in print and television advertisements for the newspaper.

– In 1984, the U.S. Supreme Court held in Sony Corp. of America v. Universal City Studios that recording an entire television show for later viewing constitutes Fair Use. This decision is often known as the “Betamax case.”

– In one of the first Fair Use cases specifically dealing with the internet, the Ninth Circuit ruled in 2002 in Kelly v. Arriba Soft Corp. that the use of thumbnails of copyrighted photographs and other images by search engines did not infringe the copyright owners’ rights.

4. Effect on the Copyrighted Work’s Value

A use that might harm the copyright owner’s financial interests is far less likely to qualify for Fair Use.

– In the Triangle Publications case, mentioned above, the court found that reprinting the cover of a TV Guide issue in a newspaper advertisement had no effect on the market for actual issues of TV Guide, since consumers purchased TV Guide primarily for the television listings, not the covers.

– A Mississippi federal court ruled in 2013 in Faulkner Literary Rights v. Sony Pictures Classics that the use of a paraphrased quote from a William Faulkner novel in Woody Allen’s 2011 film Midnight in Paris was covered by Fair Use. The court found that the use of the passage from Faulkner’s Requiem for a Nun was transformative, and that it was a “flattering and artful use of literary allusion” that was unlikely to harm the market for the novel.

Coming soon: How to find images you can use through Google image search, parody as a form of Fair Use, and more on open source software licenses.

Photo credits: Óðinn at the English language Wikipedia [GFDL or CC-BY-SA-3.0], via Wikimedia Commons; ∑ssarege∑ (talk).Essaregee at en.wikipedia [Public domain], from Wikimedia Commons.

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