Copyright Fair Use: Know the Basics

Have you ever heard of or seen someone else use what you know is copyrighted material, and yet, you’re pretty certain they didn’t pay for or get permission to use that material? One way that they may be doing that is through what is known as the fair use doctrine. But be careful—there is a fine line between legitimate fair use, and outright copyright infringement.

What is Fair Use?

One problem is that the definition of what is fair use is vague, and there is no exact test to see what is and what is not really fair use.

As a general rule, you can use someone else’s copyrighted material under fair use, if you use it for a very limited purpose, you don’t use more than what is needed, and if you are using the copyrighted material for one of a few limited purposes.

Those limited purposes generally fall into one of a few categories:

• If you are using the material for commentary or criticism or to express an opinion. So, for example, a political writer uses a picture of Wile E. Coyote to emphasize an opinion about the incompetence of a politician. Or, a writer uses Darth Vader and Luke Skywalker to compare and contrast two different sides of an argument in an article.
• Parody and satire are common – you may remember the old Mad Magazines, which often had comical representations of movies or public figures. Many late night talk shows can use representations of characters to emphasize their parody of whatever it is they are talking about.
• Educational – Education can be in a classroom, but can also be educating the general public. Imagine that you are teaching people about holistic medicine, and you want to cite to medical journals (which are copyrighted), or you use a copyrighted clip of a basketball player’s shooting form, to make a video showing kids how to shoot a basketball.
• Reporting – Any copyrighted work that is necessary for a news report, can be used.

Things to be Careful About

Note that in every fair use instance, the user cannot be making a profit directly off of the copyrighted image. So, in the examples above, the user is making a profit off of the article or commentary or parody—not directly from the copyrighted image, even if the image itself is contributing to the value of the work.

Also note that users should use only as much of a copyrighted clip that is necessary, and no more. So, to contrast political views, I could use a short clip of Star Wars characters—but I could not show 15 minutes of Star Wars in my video to illustrate my point.

You should also avoid doing anything that could harm the copyright owner.

So, for example, using a Disney villain in an article posted on an adult website, would be less likely to be fair use, given that the association between the two is something that Disney (the copyright owner) would likely see as damaging their brand or the copyrighted work.

We can help you with your intellectual property legal issues. Call the West Palm Beach business litigation attorneys at Pike & Lustig today.

Sources:

copyrightalliance.org/faqs/what-is-fair-use/

fairuse.stanford.edu/overview/fair-use/what-is-fair-use/