Fair use is exactly as it sounds: it’s the limited use of copyrighted material done for a small or “transformative” purpose, such as to comment upon, criticise, or parody a copyrighted work.
Fair use can be done without permission from the copyright owner.
In other words, fair use is a defence against a claim of copyright infringement.
If your use qualifies as fair use, it will not be considered an infringement.
Can you give examples of fair use?
Most fair use falls into two categories:
1: Commentary and criticism
2: Parody
For example, if a journalist writes a book review, they are, under fair use, allowed to quote sections of the book for commentary and criticism.
When it comes to parody and fair use, the parody is a work that ridicules another, usually well-known work, by imitating it in a comic way.
Parody inherently requires borrowing from the original work. Unlike other fair uses, parodies are allowed to use a substantial amount of the original to effectively evoke it and deliver their comedic or critical message.
What is ‘transformative’ use?
Transformative use of copyright material is a much trickier subject.
Transformative fair use is when someone uses copyrighted material to explain or illustrate something that is important to their narrative or story.
An example of transformative fair use is when a documentary film maker might use images or advertising posters from the past to illustrate the way society was back then, and how society’s thinking has changed.
Another example of transformative use is when someone samples a very small part of an existing song and builds a ‘new’ song around it. However, such cases often end up in court because the original artist doesn’t agree that the sample is fair use.
Similar to free speech, the concept of fair use was established with a broad scope. Lawmakers intentionally avoided a rigid definition, allowing for flexibility in interpretation based on specific situations.
In essence, fair use gives users the right to use copyrighted material without permission under certain circumstances.
If a use is fair, the user need not notify or seek permission from the copyright holder.
The four factors of fair use
In determining whether the use of a work is fair use, the four main factors include:
- The purpose and character of the use, i.e. is it of a commercial nature or is it for nonprofit educational purposes?
- The nature of the copyrighted work can tip the scales against fair use. Creative works, like novels, paintings, and songs, are at the heart of copyright protection, so their use is generally scrutinised more heavily.
- The amount of the copyrighted work used, for example, was a substantial amount used or just a small piece like a quote from a book? In general, the more you use, the less likely your use is to be fair.
- The effect of the use on the market for or value of the copyrighted work. For example, is the use of a summary enough to prevent people from buying the full work? The more your use replaces the original work, reducing the need for people to buy it, the less likely it is considered fair use. Uploading a scan of a new bestseller to a public website would be a clear example of this.
Fair use isn’t a simple checklist. Each factor has nuances, and the final call requires weighing them all together to find a fair balance.
What if my use of content isn’t fair use?
If a planned use isn’t a fair use and doesn’t fall within another exception, you can obtain permission from the copyright holder by using a system like Contenseo’s Licence Finder.
Contenseo’s Licence Finder will find the copyright holder for you, and you can either seek permission or pay an affordable fee for a licence.
Discover more about content licensing
The Licence Finder is a magic weapon
© 2024 Contenseo. All rights reserved.