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What Is Fair Use?

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You've probably heard of the term "fair use" online, particularly if you create videos for YouTube or otherwise publish material online. This is a legal doctrine that dictates how you can use copyrighted work, so it's important to understand.

Let's discuss what fair use is, how to figure out what constitutes fair use, and look at some examples to illustrate this principle.

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What Is Fair Use?

Fair Use is a legal doctrine in the United States that allows people to use small amounts of copyrighted material without asking permission from the copyright holder, under certain circumstances. Without fair use, you'd have to ask for permission to use any copyrighted material, such as quoting lines from a song in a review.

Fair use is part of the Copyright Act of 1976, which is the primary law for how copyright works in the US.

Read more: Copyleft vs. Copyright: Key Concepts You Need to Know

It's useful to know the distinctions between copyright and the similar protections offered by trademarks and patents. A copyright protects an intellectual property owner's right to make copies of their creative works without infringement from others—for example, making it illegal for you to copy a CD and sell it.

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A trademark is a phrase or design that distinguishes your product or service from other companies, such as the Apple logo. Meanwhile, a patent protects inventions, like a new type of computer processor. Fair use generally applies only to creative works, not to the other two types of intellectual property.

Similar doctrines exist in other countries, and the related concept of "fair dealing" applies in the UK and many former British territories. However, we focus on US law here in order to keep the scope manageable.

How Is Fair Use Defined?

Section 107 of the Copyright Act specifies that fair use of a copyrighted act "for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research" does not infringe on the copyright holder's protections.

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Importantly, it provides four factors to determine whether something falls under fair use:

  1. The purpose and character of the use, including whether it's for commercial or educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used, compared to the entire copyrighted work.
  4. The effect of your use on the potential market for or value of the copyrighted work.

From these, you can probably tell that fair use is not a static principle. Each instance is different, and only a court can decide whether something is fair use. We can take a closer look at these four factors to get a better idea, though.

1. The Purpose and Character of Use

This is one of the most important characteristics for determining fair use. While educational purposes are more likely to fall under fair use than those you earn money from, either type can qualify.

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In particular, a judge will look at whether the new work is transformative. This means that your new work heavily modified the original by giving it additional meaning or value, with new information or insights.

For example, say you create a YouTube video review of a movie. If you take a few short clips from the movie to illustrate points you make, that likely falls under fair use. In that case, you are using the clips in order to create a new work.

Read more: How to Check If a Video Is Copyrighted

Republishing clips without additional insight would not fall under fair use. For instance, uploading a YouTube video of the funniest moments in a movie isn't fair use, because it doesn't transform the original work at all.

An example of this is CinemaSins on YouTube, which pokes fun at "everything wrong with" various movies. While there are clips used, the final product is closer to a parody or critical commentary than the original movie, so it falls under fair use.

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2. The Nature of the Copyrighted Work

This point considers whether the original work is fiction or nonfiction. Because factual information is more beneficial to audiences than a fictional work, an excerpt is more likely to be considered fair use when it's from something like a news article or biography.

The publication status of the original work also weighs into this factor. Unpublished works are covered by fair use, but you'll have a stronger case for a published work. This is because the law generally says that an author has control over the first appearance of their work.

For example, quoting a few snippets from a news article in a non-fiction book you're writing will likely be considered fair use. However, playing an entire copyrighted song in a video game you're building wouldn't be fair use.

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3. The Amount and Substantiality of the Portion Used

While there are no specific limits to fair use, using less of the original work will generally work in your favor. However, it's not just the amount, but how important the excerpt is to the original work.

For example, showing three seconds of a movie as a joking "reaction" moment in a YouTube video is likely to fall under fair use. But using the climactic moment in a movie, which is the "heart" of the work, might not be fair use since it's substantial to the original film.

Photos and artwork are tricky with this element, as you need to see the entire image to appreciate it. Generally, fair use of copyrighted photos involves thumbnail-sized images, which are low-resolution enough that they aren't a proper substitute for the original. You'll notice this on Wikimedia Commons images, which use low-res screenshots of copyrighted material for illustrative purposes.

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4. The Effect of Your Use on the Potential Market

The final important factor concerns how your usage of the material affects the copyright owner's ability to make money from their property. If your use "fulfills demand" for the original, it isn't covered under fair use.

For example, playing five seconds of a song to illustrate an impressive guitar solo in a YouTube video would likely be fair use, since that short snippet doesn't fulfill a listener's demand to hear the original song.

However, if you published the entirety of a short poem in a blog post, people wouldn't need to visit the author's website or purchase a book of their poems to read it. This is not fair use.

It's also not fair use if you deprive a copyright owner of a potential market. For instance, just because a certain TV show doesn't sell T-shirts with its characters doesn't mean you're allowed to design a shirt that uses them.

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Copyright law does not protect the owner from all negative effects. Someone creating a negative review of a movie is legal; a copyright owner cannot sue someone for criticizing their work.

Determining Fair Use

We've looked over the basics of fair use and the metrics that a judge would use to determine cases around this matter. There's another unofficial metric that can come into play: whether your usage of the material is offensive.

A copyright holder may be more likely to sue if you, for example, create a satire of their work that's extremely explicit. Fair use applies to mature works, but a copyright holder can build a case that offensive use hurts its image.

Read more: What Is DMCA and What Does It Mean?

Taking all these factors together, how can you know if something is fair use? In general, fair use applies if all of the following are true:

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  • You've transformed someone's original work far beyond its original form by adding new insights, commentary, or other value.
  • The copyrighted work is non-fictional and freely available.
  • You're using a short portion of the work that is not its "heart."
  • Your usage of the material is not depriving the copyright holder of making money from their idea.

In the description of YouTube videos, you'll often see disclaimers like "No copyright infringement intended" or "This video is not associated with [copyright holder]". While these statements might help the way a court looks at your use, they are not sufficient for protecting against lawsuits.

In short: don't take a copyrighted work and provide a substitute way for people to access it. The best you can do is to review the factors and only post your material if you believe fair use applies. Consult a lawyer if you need help; this is not legal advice.

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Fair Use: Important but Complex

Fair use is an important part of copyright law, especially in the internet world. Without it, we couldn't use any form of copyrighted material without permission, which would limit expression and the forms of media discussed here. But since fair use isn't set in stone, you have to make a judgement call when you decide to use it.

To avoid these issues, you can stick with Creative Commons or public domain material, which are free of copyright.

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