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If you produce creative content, you should know the rules governing when and how you can reproduce or repurpose copyrighted material without the consent of the original creator.
This may be stock photography for a website, a music score in a movie, or a piece of copyrighted code in your software. You may have heard of the term "fair use", but what does it mean and how does it apply to your situation?
In this article, I will explain the concept of fair use, the factors that determine whether a use is fair or not, and give you lots of examples of fair use vs. copyright violations in different contexts.
What is Fair Use?
Fair use is an exception in copyright law that allows the limited use of copyrighted material without obtaining permission from the copyright holder.
It is based on the idea that the public should be able to freely use portions of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. The law recognizes that some uses of protected works are beneficial to the public interest and they should not be restricted by exclusive rights.
Fair use is not a fixed rule, but a flexible test that depends on the circumstances of each case.
Examples of Fair Use
Fair use covers a wide range of uses that may vary depending on the type and nature of the work involved.
Some examples of fair use include:
Quoting or summarizing a small portion of a book, article, or song in a review, critique, or research paper;
Reproducing a photograph or artwork in a news report, documentary, or educational presentation;
Creating a parody or satire of a movie, TV show, or comic strip;
Making a backup copy of a software program or video game for personal use;
Incorporating short clips or excerpts of music, film, or TV into a mashup, remix, or video essay.
On the other hand, some examples of uses that may not be fair (and therefore constitute copyright violations) are:
Copying a work verbatim or with minor changes
Using a work for entertainment or aesthetic purposes
Using a work to endorse a product or service
The ‘Fair Use’ test
If we want to use copyrighted material without getting the consent of the copyright owner, we need to determine whether our use falls within the scope of fair use.
To do so, we need to follow these four steps:
1. Identify the purpose and character of your use.
2. Identify the nature of the copyrighted work.
3. Identify the amount and substantiality of the portion used.
4. Identify the effect of your use on the potential market.
Let us look at these issues further.
The purpose and character of your use
This factor looks at whether your use is transformative, meaning that you add something new or different to the original work, such as a new perspective, insight, or criticism.
It also considers whether your use is commercial or non-commercial. Generally, transformative and non-commercial uses are more likely to be fair than non-transformative and commercial uses.
Some examples of transformative uses that may be fair are:
Quoting a passage from a book or an article to analyze, critique, or comment on it
Parodying or satirizing a work to make fun of it or criticize it
Using a work as a source of information or inspiration for creating your own original work
Some examples of non-transformative uses that may not be fair are:
Copying a work verbatim or with minor changes
Using a work for entertainment or aesthetic purposes
Using a work to endorse a product or service
The nature of the copyrighted work
This factor looks at how creative or factual the original work is.
Generally, the more creative a work is, the more protection it receives, and the less likely it is that your use will be fair. On the other hand, the more factual a work is, the less protection it receives, and the more likely it is that your use will be fair.
Some examples of creative works that receive more protection are:
Novels, poems, songs, paintings, photographs, etc.
Works that express the author's personal opinions, feelings, or imagination
Some examples of factual works that receive less protection are:
News articles, reports, textbooks, biographies, etc.
Works that present factual information or data
The amount and substantiality of the portion used
This factor looks at how much of the original work you use and how important that part is to the whole work.
Generally, the less you use, the more likely it is that your use will be fair. However, there is no magic formula or percentage that determines how much is too much. You have to consider the quality as well as the quantity of what you use.
Even if you use a small amount, if it is the heart or essence of the original work, your use may not be fair.
Some examples of uses that may be fair are:
Using a short quote or excerpt from a work to illustrate a point or support an argument
Using a thumbnail image or a low-resolution clip from a work to identify or comment on it
Using a small portion of a work that is not central or significant to the whole work
Some examples of uses that may not be fair are:
Using a large portion or the entire work
Using a key scene, image, or sound from a work that captures its main theme or message
Using a portion of a work that is distinctive or original
The effect of your use on the potential market for or value of the original work
This factor looks at how your use affects the original work's ability to make money or reach its audience.
Generally, if your use competes with or substitutes for the original work, it is less likely to be fair. On the other hand, if your use does not harm or has little impact on the original work's marketability, it is more likely to be fair.
Some examples of uses that may not be fair are:
Using a work in a way that deprives the copyright holder of income or potential income
Using a work in a way that reduces the demand or popularity of the original work
Using a work in a way that interferes with the copyright holder's exclusive rights to distribute, display, perform, or reproduce the original work
Some examples of uses that may be fair are:
Using a work in a way that does not affect its sales or availability
Using a work in a way that increases its exposure or awareness
Using a work in a way that adds value or benefit to the original work
After applying these factors to your situation, you should have a better idea of whether your use is likely to be fair or not.
Takeaway
Keep in mind that fair use is not a guarantee or a right.
It is only a defense that you can raise if you are sued for infringement. To avoid getting sued in the first place, you should always exercise caution and good judgment when using copyrighted material without permission. Speak to an attorney if you have any doubts.
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