Fair Use: Using Others' Works Without Permission or Payment
By Jonathan Minkoff ©2009, ©2012
Fair Use is a concept in copyright law that allows you, under certain limited circumstances, to use someone else's copyrighted work without paying them any fees or obtaining their permission.
By Jonathan Minkoff ©2009, ©2012
Fair Use is a concept in copyright law that allows you, under certain limited circumstances, to use someone else's copyrighted work without paying them any fees or obtaining their permission.
The idea is so enticing however, that some have begun to hallucinate, to see Fair Use mirages shimmering everywhere in the desert of copyright.
Despite what we may personally believe to be the ethical harmlessness of our actions, sometimes the answer is just "No, you can't use this without permission." This article may not give you the answers you want, but it will help you ask the right questions.
Don't Count Words
Fair Use is always determined on a case-by-case basis. Any source attempting to tell you the number of words, pages, or notes that "is allowable under fair use" is doing you a disservice.
Highly specific guidelines might represent what a group of well-meaning individuals believes is reasonable, but that's just an opinion and you need to know how the Courts will make the analysis if someone challenges you.
It's a little like having your friends tell you how fast you can drive on a highway or how many reams of paper are OK to permanently borrow from the office. Your friends may have the best of intentions, and they may even have followed their own recommendations for years, but that doesn't matter. If you speed or steal, you're taking a risk and the thumbs up that your friends gave you won't be a defense.
If you don't believe me, consider this helpful guideline provided by the Copyright Office: "There is no specific number of words, lines, or notes that may safely be taken without permission." Seems clear enough.
Plagiarism vs. Copyright
And just in case you educators thought you had the work-around: "Acknowledging the source of the copyrighted material does not substitute for obtaining permission." (http://www.copyright.gov/fls/fl102.html.)
Plagiarism and copyright infringement have nothing to do with one another. The first involves crediting the source of an idea or expression, the second, receiving permission when necessary to use the expression.
It's like announcing that you are robbing the bank. It's very honest of you. No one will call you a liar. But that doesn't mean you're not a thief.
Fair Use Definition
If there's no set amount that's approved to use, and proper credit won't do the trick, where do you start? Start with the source, the Copyright Act. This is a link to the full text of § 107, The Fair Use section of the Copyright Act. (http://www.copyright.gov/title17/92chap1.html#107)
Here is my simplified version:
"[T]he fair use of a copyrighted work, including ... copies ..., for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research, is not an infringement ...."
If you read this like a human, the text appears to say that using a work for any of the purposes on the list beginning with "criticism" is permissible. Silly human.
If you read the paragraph like a lawyer, you realize that the logic is circular and the sentence really reads like this: "Fair Use is not an infringement."
Tricky Congress. So for this to be of any use to you at all, you still need to know, what exactly is "Fair Use"?
The Fair Use Factors
Conveniently, Congress has given us a test (which they actually took from the Courts):
"In determining whether the use ... is a fair use[,] the factors ... include --
OK. Now we're talking. What does all this mean? Let's take it one factor at a time.
Purpose and Character of the Use
Remember that list beginning with "criticism"? This factor is where that list gets used. The Courts will look to see that you are doing one of the things on the list or something akin to it, since the list was intended as examples and not strict limitation.
The one thing that all the uses have in common is that they are "transformative." In all the examples, you add something new, usually a commentary or analysis of the original. You change the purpose and the character of the original by making something different. That's part of what separates this kind of permissible borrowing from just copying.
In "10 Big Myths about Copyright explained" Brad Templeton states "Are you reproducing an article from the New York Times because you needed to in order to criticise[sic] the quality of the New York Times, or because you couldn't find time to write your own story, or didn't want your readers to have to register at the New York Times web site? The first is probably fair use, the others probably aren't." (http://www.templetons.com/brad/copymyths.html). Brad is right on the money.
And speaking of money, that's another element of this first factor. Are you doing this for profit or for the March of Dimes? Many people assume that if they aren't making money on the use then it's OK. That's false. And now you know better. Whether you borrowed a work for the purposes of profit is just one part of one factor in a four factor test. And you have to get the balance of all four of the factors to weigh in your favor, so keep reading.
Nature of the Copyrighted Work
All works are not created equal. Some works get stronger copyright protection than others. The closer the work is to a mere collection of facts, the "thinner" the protection it gets.
Consider the phone book, the weather report or a list of ingredients. There are only a few ways to organize everyone's names, tell you it’s raining and chilly or to make chocolate chip cookies.
The closer the work gets to pure creativity, the stronger its copyright protection. Consider a painting, song, or even a photograph. These are expressive, and copyright protects an author's expressiveness, and not her underlying ideas or facts.
For instance, if the children's song teaching us the ABCs were copyrighted, it would still be OK to use most of the lyrics and to write your own melody. This is because the melody is expressive, but the idea of an alphabet song is not protected under copyright, and the order and contents of the alphabet is a fact. That's nearly if not all of the lyrics, so you’d be free to use those lyrics.
As it happens, the melody (which we recognize as beginning with C-C-G-G-A-A-G) is from a French work, " "Ah ! vous dirai-je, Maman" first published in 1761, whose melody was later published in variations by Mozart in 1785. This ancient melody was combined with the Alphabet Song lyrics in 1834. This dates the Alphabet Song’s creation prior to contemporary copyright law in the US and leaving the whole kit and kaboodle to currently reside in the public domain. But it illustrates the point: the more creative and expressive the thing you borrow, the less factual, the more protected, so be careful!
Amount and Substantiality of the Portion Used
This element of the test frequently dominates the analysis. And this is where many a case seems to get in trouble. Read this carefully: You take an enormous risk by using someone else's entire work. But you still take a big risk if you use "the heart of the work" or, as I like to say, "the good stuff". This factor ties into the next factor as well. If you take enough of the original so that buying your work might possibly substitute for buying the original, then you know you've likely taken too much.
Effect of the Use on the Potential Market for and the Value of the Copyrighted Work
This is a tricky factor for many people to grasp. What exactly is the "Potential Market" for a work? Although we don’t have a clear-cut answer, consider the words of these Courts regarding the "Potential Market":
"It would . . . not serve the ends of the Copyright Act - i.e., to advance the arts - if artists were denied their monopoly over derivative versions of their creative works merely because they made the artistic decision not to saturate those markets with variations of their original." Castle Rock, 955 F. Supp. at 272 Campbell, 510 U.S. at 578; see Texaco, 60 F.3d at 926 (applying Campbell approach).
Under this factor, we "consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market for the original." Campbell, 510 U.S. at 590 (quotation marks and citation omitted).
The fourth factor must also "take account . . . of harm to the market for derivative works," id., defined as those markets "that creators of original works would in general develop or license others to develop," id. at 592.
Consider sampling. Though the samples usually get strong copyright protection, they are also usually small and the new songs that use them do generally transform them, though the transformation is from song to song rather than song to say, commentary on songwriting. But, the fourth factor is where the most serious transgression occurs: there is a market for authors to sell their samples and by just taking the samples, that market is obviously harmed. Also, an artist is free to deny the use of the sample. They may feel that including their work in your new context is something that might hurt their reputation, possibly because you are offensive, untalented or even because you aren't a big enough star. That's the original author's choice.
The bottom line is that this factor is interpreted so broadly that analysis almost always favors the original copyright holder and not the person attempting to invoke Fair Use.
Now despite how this factor seems to include harm to the value of the copyrighted work you’re borrowing, you are nonetheless free to say negative things in criticizing other people's works. That's free speech.
Doesn't that negative free speech harm the "value" of the work? Yes, but not in a way that Congress meant to protect.
So under this factor, bad reviews are OK, parody is OK -even if after reading your clever diatribes, the entire world hates the original author and her work. You are limited only by the rules of libel. So don't lie. But do feel free to share your unbelievably harsh critiques to your blackened heart's content.
Fair Use Examples
Believe it or not, you now have the delightfully short version of the Fair Use Factors. But in case you've broken down into tears, here is a list that The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites as examples of activities that courts had then regarded as fair use (note that I've bolded words that should not be overlooked):
Seeing a pattern here? Keep it brief and you're usually on the right track. Pigs get fed; hogs get slaughtered.
Give Fair Use a Try
So let's try out our new analysis skills.
I quoted The Copyright Office at the beginning of this article: "There is no specific number of words, lines, or notes that may safely be taken without permission." Remember back that far? It's hard to remember anything right now, I'm sure, but scroll up and check it out if you don't believe me.
Welcome back, amnesiac scrollers. We took it for granted that I could use that sentence, not just the ideas of the sentence, but the exact quote, the expression. We have an instinct that it's OK. But why? And no, "Because you did it, Mr. Minkoff," is not an acceptable answer.
Quick Robin, to the Fair Use Analysis cave! (na na na na na na...)
Character of My Use
I am writing an educational article for a non-profit entity (this article is linked to from SingStrong Charity A cappella Festival). Can you see my halo? That's a double whammy in my favor: favored purpose and non-profit status.
Nature of the Work I'm Using
I quoted an explanation of the law. It's not a phone book, but it's not Peter Gabriel's "In Your Eyes" either. How many ways can you say what the Copyright Office said? A few, but not that many, so it gets slightly "thinner" protection. This factor probably favors me.
The Amount and Substantiality I Used
Remember how important this factor is. I did not copy the entire website, the entire article or even the entire paragraph. I quoted one sentence. That's not very much. And the website talks about many topics. So I can argue I probably did not take the heart of the work away, though that's at least debatable. In the end, the tiny portion of what I used means this factor likely goes my way.
The Effect of My Use on the Copyright Holder's Potential Market
The government is giving this sentence away, and they have given every indication that they always will. So I'd say the effect is zero. But keep in mind that this factor could still be interpreted against me easily so try to win all the other factors. After all, perhaps the public gets access only by visiting the government's website and the government gets a benefit from the large number of hits.
Balance the Factors
Weigh all the factors in light of the purposes of copyright and I think you find that there's nothing that was done that would counter Congress's overriding goal of furthering the creation of new works. Fair Use achieved! I get to pose by the Fighter Jet next to my banner now.
Is It Protected?
That analysis was actually a trick question of sorts because the source of the quote was a US Government employee. And thankfully, the US Government cannot hold copyright protection for its own employees' works.
This means the sentence I quoted isn't protected by copyright at all. It's in the public domain, like the Alphabet Song. Anything in the public domain can be used by anyone for any purpose without permission, so I could have skipped the Fair Use Factors altogether, but then what would you have learned?
(By the way, it's a million little details like that that make hiring a lawyer important and make this article general legal information rather than specific legal advice for a given situation.)
The prequel to this article could be called "Is It Protected?" Because if the answer is "No" then any use is Fair Use. But since almost everything published since 1923 is protected, and will likely remain protected for a long time, it's a far safer route to assume that you do indeed need to go through the Fair Use Factors or get permission.
Almost no works published after January 1, 1978, will pass into the public domain until at least 2048 so the Fair Use Factors are gonna stay pretty important for a while.
What the Courts Said
If all this still seems like soup, try reading some case summaries. See how the courts applied the factors. Here is one place you can read such cases: http://www.copyright.iupui.edu/FUsummaries.htm#bas. See if you would have made the same calls.
Conclusion
So what did we learn? Fair Use is absolutely not a bright line test. You can’t just count words or notes. It's a case-by-case, delicate balancing of free speech vs. the monopoly we grant authors in order to entice them into creating new works.
Reasonable people may disagree as to how fair a use is, and many groups wish that the test were clearer, but that kind of change in the law does not look likely at this time.
Now that you have read the article, you can begin to see the issues the way a court will, and that makes you better armed to make the right call ahead of time.
Disclaimer
Here's an important legal disclaimer: Nothing in this article is legal advice. It's merely a general discussion of the law. Allow me to specify: if you have a specific question or situation requiring legal counsel, you need to speak to a specific lawyer personally who will ask you specific questions about your specific situation which will allow him to do specific research in order to give you specific advice.
Despite what we may personally believe to be the ethical harmlessness of our actions, sometimes the answer is just "No, you can't use this without permission." This article may not give you the answers you want, but it will help you ask the right questions.
Don't Count Words
Fair Use is always determined on a case-by-case basis. Any source attempting to tell you the number of words, pages, or notes that "is allowable under fair use" is doing you a disservice.
Highly specific guidelines might represent what a group of well-meaning individuals believes is reasonable, but that's just an opinion and you need to know how the Courts will make the analysis if someone challenges you.
It's a little like having your friends tell you how fast you can drive on a highway or how many reams of paper are OK to permanently borrow from the office. Your friends may have the best of intentions, and they may even have followed their own recommendations for years, but that doesn't matter. If you speed or steal, you're taking a risk and the thumbs up that your friends gave you won't be a defense.
If you don't believe me, consider this helpful guideline provided by the Copyright Office: "There is no specific number of words, lines, or notes that may safely be taken without permission." Seems clear enough.
Plagiarism vs. Copyright
And just in case you educators thought you had the work-around: "Acknowledging the source of the copyrighted material does not substitute for obtaining permission." (http://www.copyright.gov/fls/fl102.html.)
Plagiarism and copyright infringement have nothing to do with one another. The first involves crediting the source of an idea or expression, the second, receiving permission when necessary to use the expression.
It's like announcing that you are robbing the bank. It's very honest of you. No one will call you a liar. But that doesn't mean you're not a thief.
Fair Use Definition
If there's no set amount that's approved to use, and proper credit won't do the trick, where do you start? Start with the source, the Copyright Act. This is a link to the full text of § 107, The Fair Use section of the Copyright Act. (http://www.copyright.gov/title17/92chap1.html#107)
Here is my simplified version:
"[T]he fair use of a copyrighted work, including ... copies ..., for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research, is not an infringement ...."
If you read this like a human, the text appears to say that using a work for any of the purposes on the list beginning with "criticism" is permissible. Silly human.
If you read the paragraph like a lawyer, you realize that the logic is circular and the sentence really reads like this: "Fair Use is not an infringement."
Tricky Congress. So for this to be of any use to you at all, you still need to know, what exactly is "Fair Use"?
The Fair Use Factors
Conveniently, Congress has given us a test (which they actually took from the Courts):
"In determining whether the use ... is a fair use[,] the factors ... include --
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work."
OK. Now we're talking. What does all this mean? Let's take it one factor at a time.
Purpose and Character of the Use
Remember that list beginning with "criticism"? This factor is where that list gets used. The Courts will look to see that you are doing one of the things on the list or something akin to it, since the list was intended as examples and not strict limitation.
The one thing that all the uses have in common is that they are "transformative." In all the examples, you add something new, usually a commentary or analysis of the original. You change the purpose and the character of the original by making something different. That's part of what separates this kind of permissible borrowing from just copying.
In "10 Big Myths about Copyright explained" Brad Templeton states "Are you reproducing an article from the New York Times because you needed to in order to criticise[sic] the quality of the New York Times, or because you couldn't find time to write your own story, or didn't want your readers to have to register at the New York Times web site? The first is probably fair use, the others probably aren't." (http://www.templetons.com/brad/copymyths.html). Brad is right on the money.
And speaking of money, that's another element of this first factor. Are you doing this for profit or for the March of Dimes? Many people assume that if they aren't making money on the use then it's OK. That's false. And now you know better. Whether you borrowed a work for the purposes of profit is just one part of one factor in a four factor test. And you have to get the balance of all four of the factors to weigh in your favor, so keep reading.
Nature of the Copyrighted Work
All works are not created equal. Some works get stronger copyright protection than others. The closer the work is to a mere collection of facts, the "thinner" the protection it gets.
Consider the phone book, the weather report or a list of ingredients. There are only a few ways to organize everyone's names, tell you it’s raining and chilly or to make chocolate chip cookies.
The closer the work gets to pure creativity, the stronger its copyright protection. Consider a painting, song, or even a photograph. These are expressive, and copyright protects an author's expressiveness, and not her underlying ideas or facts.
For instance, if the children's song teaching us the ABCs were copyrighted, it would still be OK to use most of the lyrics and to write your own melody. This is because the melody is expressive, but the idea of an alphabet song is not protected under copyright, and the order and contents of the alphabet is a fact. That's nearly if not all of the lyrics, so you’d be free to use those lyrics.
As it happens, the melody (which we recognize as beginning with C-C-G-G-A-A-G) is from a French work, " "Ah ! vous dirai-je, Maman" first published in 1761, whose melody was later published in variations by Mozart in 1785. This ancient melody was combined with the Alphabet Song lyrics in 1834. This dates the Alphabet Song’s creation prior to contemporary copyright law in the US and leaving the whole kit and kaboodle to currently reside in the public domain. But it illustrates the point: the more creative and expressive the thing you borrow, the less factual, the more protected, so be careful!
Amount and Substantiality of the Portion Used
This element of the test frequently dominates the analysis. And this is where many a case seems to get in trouble. Read this carefully: You take an enormous risk by using someone else's entire work. But you still take a big risk if you use "the heart of the work" or, as I like to say, "the good stuff". This factor ties into the next factor as well. If you take enough of the original so that buying your work might possibly substitute for buying the original, then you know you've likely taken too much.
Effect of the Use on the Potential Market for and the Value of the Copyrighted Work
This is a tricky factor for many people to grasp. What exactly is the "Potential Market" for a work? Although we don’t have a clear-cut answer, consider the words of these Courts regarding the "Potential Market":
"It would . . . not serve the ends of the Copyright Act - i.e., to advance the arts - if artists were denied their monopoly over derivative versions of their creative works merely because they made the artistic decision not to saturate those markets with variations of their original." Castle Rock, 955 F. Supp. at 272 Campbell, 510 U.S. at 578; see Texaco, 60 F.3d at 926 (applying Campbell approach).
Under this factor, we "consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market for the original." Campbell, 510 U.S. at 590 (quotation marks and citation omitted).
The fourth factor must also "take account . . . of harm to the market for derivative works," id., defined as those markets "that creators of original works would in general develop or license others to develop," id. at 592.
Consider sampling. Though the samples usually get strong copyright protection, they are also usually small and the new songs that use them do generally transform them, though the transformation is from song to song rather than song to say, commentary on songwriting. But, the fourth factor is where the most serious transgression occurs: there is a market for authors to sell their samples and by just taking the samples, that market is obviously harmed. Also, an artist is free to deny the use of the sample. They may feel that including their work in your new context is something that might hurt their reputation, possibly because you are offensive, untalented or even because you aren't a big enough star. That's the original author's choice.
The bottom line is that this factor is interpreted so broadly that analysis almost always favors the original copyright holder and not the person attempting to invoke Fair Use.
Now despite how this factor seems to include harm to the value of the copyrighted work you’re borrowing, you are nonetheless free to say negative things in criticizing other people's works. That's free speech.
Doesn't that negative free speech harm the "value" of the work? Yes, but not in a way that Congress meant to protect.
So under this factor, bad reviews are OK, parody is OK -even if after reading your clever diatribes, the entire world hates the original author and her work. You are limited only by the rules of libel. So don't lie. But do feel free to share your unbelievably harsh critiques to your blackened heart's content.
Fair Use Examples
Believe it or not, you now have the delightfully short version of the Fair Use Factors. But in case you've broken down into tears, here is a list that The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites as examples of activities that courts had then regarded as fair use (note that I've bolded words that should not be overlooked):
- “quotation of excerpts in a review or criticism for purposes of illustration or comment;
- quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations;
- use in a parody of some of the content of the work parodied;
- summary of an address or article, with brief quotations, in a news report;
- reproduction by a library of a portion of a work to replace part of a damaged copy;
- reproduction by a teacher or student of a small part of a work to illustrate a lesson;
- reproduction of a work in legislative or judicial proceedings or reports;
- incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
Seeing a pattern here? Keep it brief and you're usually on the right track. Pigs get fed; hogs get slaughtered.
Give Fair Use a Try
So let's try out our new analysis skills.
I quoted The Copyright Office at the beginning of this article: "There is no specific number of words, lines, or notes that may safely be taken without permission." Remember back that far? It's hard to remember anything right now, I'm sure, but scroll up and check it out if you don't believe me.
Welcome back, amnesiac scrollers. We took it for granted that I could use that sentence, not just the ideas of the sentence, but the exact quote, the expression. We have an instinct that it's OK. But why? And no, "Because you did it, Mr. Minkoff," is not an acceptable answer.
Quick Robin, to the Fair Use Analysis cave! (na na na na na na...)
Character of My Use
I am writing an educational article for a non-profit entity (this article is linked to from SingStrong Charity A cappella Festival). Can you see my halo? That's a double whammy in my favor: favored purpose and non-profit status.
Nature of the Work I'm Using
I quoted an explanation of the law. It's not a phone book, but it's not Peter Gabriel's "In Your Eyes" either. How many ways can you say what the Copyright Office said? A few, but not that many, so it gets slightly "thinner" protection. This factor probably favors me.
The Amount and Substantiality I Used
Remember how important this factor is. I did not copy the entire website, the entire article or even the entire paragraph. I quoted one sentence. That's not very much. And the website talks about many topics. So I can argue I probably did not take the heart of the work away, though that's at least debatable. In the end, the tiny portion of what I used means this factor likely goes my way.
The Effect of My Use on the Copyright Holder's Potential Market
The government is giving this sentence away, and they have given every indication that they always will. So I'd say the effect is zero. But keep in mind that this factor could still be interpreted against me easily so try to win all the other factors. After all, perhaps the public gets access only by visiting the government's website and the government gets a benefit from the large number of hits.
Balance the Factors
Weigh all the factors in light of the purposes of copyright and I think you find that there's nothing that was done that would counter Congress's overriding goal of furthering the creation of new works. Fair Use achieved! I get to pose by the Fighter Jet next to my banner now.
Is It Protected?
That analysis was actually a trick question of sorts because the source of the quote was a US Government employee. And thankfully, the US Government cannot hold copyright protection for its own employees' works.
This means the sentence I quoted isn't protected by copyright at all. It's in the public domain, like the Alphabet Song. Anything in the public domain can be used by anyone for any purpose without permission, so I could have skipped the Fair Use Factors altogether, but then what would you have learned?
(By the way, it's a million little details like that that make hiring a lawyer important and make this article general legal information rather than specific legal advice for a given situation.)
The prequel to this article could be called "Is It Protected?" Because if the answer is "No" then any use is Fair Use. But since almost everything published since 1923 is protected, and will likely remain protected for a long time, it's a far safer route to assume that you do indeed need to go through the Fair Use Factors or get permission.
Almost no works published after January 1, 1978, will pass into the public domain until at least 2048 so the Fair Use Factors are gonna stay pretty important for a while.
What the Courts Said
If all this still seems like soup, try reading some case summaries. See how the courts applied the factors. Here is one place you can read such cases: http://www.copyright.iupui.edu/FUsummaries.htm#bas. See if you would have made the same calls.
Conclusion
So what did we learn? Fair Use is absolutely not a bright line test. You can’t just count words or notes. It's a case-by-case, delicate balancing of free speech vs. the monopoly we grant authors in order to entice them into creating new works.
Reasonable people may disagree as to how fair a use is, and many groups wish that the test were clearer, but that kind of change in the law does not look likely at this time.
Now that you have read the article, you can begin to see the issues the way a court will, and that makes you better armed to make the right call ahead of time.
Disclaimer
Here's an important legal disclaimer: Nothing in this article is legal advice. It's merely a general discussion of the law. Allow me to specify: if you have a specific question or situation requiring legal counsel, you need to speak to a specific lawyer personally who will ask you specific questions about your specific situation which will allow him to do specific research in order to give you specific advice.
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