Fair Use: FAQ


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

I receive many questions about what is or is not fair use. Here are some of the most asked. (For some reason, most of the answers are “no” — sorry about being negative.)

Is any Use that is “Fair” Automatically Fair Use?

No. Fair Use is a legal term that, although stemming from the English phrase, has its own definition. What you or someone else may consider fair or not fair (“no fair!” as my kids say) is not really relevant.

Can I Copy an Image Under Fair Use If it Doesn’t have the Copyright Symbol?

No. The copyright symbol is not necessary under U.S. law. The creator still has copyright.

Can I Copy an Image Under Fair Use If I Give Credit To The Photographer or Include a Disclaimer?

No.Giving credit does not affect fair use. Including a credit: (a) is nice; (b) may be a requirement of a license; and (c) avoids the appearance of plagiarism, but that’s an ethic not a law.

Is it Fair Use to Copy Works in the Public Domain?

You are already free to copy works that are in the public domain. Fair use does not apply when it’s not an infringement in the first place.

I Heard That Copying Less Than 300 Words of Text is Fair Use, Correct?

No. That number comes from a now-defunct agreement between New York publishers that was informal and not a law. There is no word limit in the law. The question is usually: Is the amount substantial?

If I’m Not Making Money from the Use then it’s Fair Use, Correct?

No. It’s the effect on the other guy that counts. If the owner of the copyright of the original work now has less of an opportunity to make money due to your action, then your use would not be fair use.

Is Including a Photo in a Non-Commercial Blog Fair Use?

No, not necessarily. The photographer may, or could potentially, be offering that photo on a microstock site for paid licensing on blogs. Thus, the use may fail the fourth factor of fair use.

Is Anything To Do with News Fair Use?

No. Fair Use certainly applies when the story is truly newsworthy at the time of publication. But I have news for you: Yesterday’s news is not news. The same story published later, may not be fair use — the passage of time has changed the use. Also, editorials may sometimes be advertorials, or ads dressed up as news, which doesn’t pass muster.

Can I Copy Facts?

Yes! Many things are not protected by copyright law and thus are not subject to fair use determination. These include facts, ideas, concepts, processes, works by the US Government, works in the public domain, and unavoidable artistic expressions.

What is Editorial Use? Is it the same thing as Fair Use?

It is related. Editorial Use is an industry term based on the Fair Use exception of copyright law, but it often also covers other issues such as trademark and publicitiy. Editorial Use often pertains to newsworthy and commentary usage and contrasts with Commercial Use.

Let’s review editorial and commercial use.

Comments


Reply by Alex

September 19, 2011

Could you go into more detail on "If I’m Not Making Money from the Use then it’s Fair Use, Correct?"


Reply by Andrew Hudson, PhotoSecrets

September 23, 2013

Hi Alex:

Thanks for your request. This is a very gray area where, ultimately, only a judge’s ruling counts, but here’’s some additional info.

Fair use has four stated factors, two of which involve making money. They are:

[q]the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

http://photosecrets.com/17-usc#107

USC 17 §107 1[/q]

[q]the effect of the use upon the potential market for or value of the copyrighted work.

http://photosecrets.com/17-usc#107

USC 17 §107 4[/q]

The first factor is about you making money, and the last one is about the copyright owner potentially making money. If there’s no money likely in either case, then the use is more likely to be ruled as “fair use.” To see what judges have ruled, see Copyright Case Law: Fair Use.

Thanks,

Andrew


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