Fair Use


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

“…the fair use of a copyrighted work …is not an infringement of copyright.”
— United States Copyright Act of 1976 § 107.

Introduction to Fair Use

Fair Use is a legal exception to copyright law that allows for usage that primarily benefits the public. When the application falls under fair use, publishers do not have to seek permission from the copyrights holders or pay for licensing.

Examples of potential fair use include:

  • News: Newspapers can show a photo that includes artwork in a newsworthy story.
  • Commentary and criticism: People can show a work to discuss and critique it.
  • Parody: Comedians can make fun of the work itself.
  • Education: Teachers can make copies of artwork to teach about it.
  • Research and scholarship: Students can copy artwork to learn about it.
  • Archiving: Libraries can keep copies available for the public.
  • Internet Search: Thumbnail images of photos can be shown as part of an Internet search.

What Is The Law?

Fair Use is a provision of the U.S. copyright law found in Title 17 of the U.S. Code at Section 107.

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Fair Use is federal statutory civil law and is supported in common law from England. Fair Use is not a statutory law outside of the U.S., except in Israel. The U.K., Canada, and Australia have a similar but more limited concept called fair dealing. Some countries have little or no law on fair use.

Affirmative Defense

Fair Use is what is known as an “affirmative defense.” If the plaintiff can show likely (or “prima facie”) infringement under the law, then it becomes the defendant’s burden to submit and demonstrate that the actual use was “fair use.” For the defendant, this is akin to being innocent until proven guilty, then guilty until proven innocent. The defense has a burden of proof and must present facts and evidence to justify the usage.

Determination

There is no fixed line to determine what is, and what is not, fair use. It is a deliberate gray area and decisions are intended to be made on a case-by-case basis.

The law is purposefully vague, stating only “factors to be considered” “in any particular case.” This is particularly frustrating to people with a science, math, or engineering background (such as me), who want to know where the line is, as, unfortunately, there just isn’t one. A lawyer could advise what is likely to be fair use or not, but the only way to know for sure is to end up in court.

The main way to determine what is likely to be considered fair use is to view the situation through the lens of the “four factors.

Next page: Fair Use: Landmark Cases

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