Fair Use. These two little words are vexing.
Fair Use. These two little words are vexing.
Here is the most important thing that you need to know about fair use: It is a defense. A defense against a claim of copyright infringement.
It is not a right you can get ahead of time to use the IP, like you get from a license agreement. It is not standardized permission to use IP like you get with a Creative Commons license. It is not a free pass to use IP, such as use of materials that are in the public domain.
How do you know whether your use of someone else’s IP without their permission is fair use? The only way to get a definitive answer is to have it resolved in federal court. Every analysis of whether a use is a fair use is fact specific.
As you know, copyright grants the owner the exclusive right to:
reproduce the copyrighted work
prepare derivative works based upon the work
distribute copies of the work to the public
publicly perform the copyrighted work
publicly display the copyrighted work
Fair use means using a copyrighted work without permission from the copyright owner for a limited and “transformative” purpose, such as to comment upon, criticize, or parody the copyrighted work. If your use qualifies as a fair use, then it would not be considered an infringement of the owner’s copyright.
I am not a fan of relying upon fair use for any materials that will be commercially exploited. There is no better way to derail momentum, at best, or drain all available resources, at worse, than a copyright infringement claim. Fair use litigation is especially troublesome because what is considered fair use is subjective and is often affected by a judge or jury’s personal sense of right or wrong. Talk about a minefield. 😧
Four factors are weighed in fair use disputes. Note, however, that these factors are only guidelines; determinations are made on a case‑by‑case basis, making the outcome difficult to predict.
The four factors that judges consider are:
The purpose and character of your use: Was the material used to help create something new or merely copied verbatim into another work?
The nature of the copyrighted work: Is the original work informational, such as a description of historical facts, or highly unique and creative, like a painting?
The amount and substantiality of the portion taken: The less you take, the more likely that your use is a fair use. However, you will run into trouble if the small portion you take is also the most recognizable aspect of a work.
The effect of your use upon the owner’s potential market for the work: Does your use deprive the copyright owner of income or usurp a potential market for the copyrighted work?
Because I know you’re wondering, here’s what won’t deter an infringement claim:
Providing credit to the source material. Look at the exclusive rights again. Whether or not the owner gets a link or an acknowledgment isn’t a factor.
Disclaimers that you didn’t intend to commit copyright infringement. Except…you did.
All that said, we are in the business of creating our own intellectual property so we can build scalable and saleable businesses. But when you do use a third party’s materials, get a license please.
Hit me up with any questions.