When is it okay to use somebody’s copyrighted material without asking for their permission first?
This seems like an easy question to answer. You can’t use somebody else’s copyrighted material, or really any intellectual property, without their permission. Doing so opens your business to legal consequences that could lead to you paying thousands of dollars in fines. Of course, nobody can use your copyrighted work either for the same reason.
Except it isn’t that simple.
Other parties may be able to use your copyrighted work under the fair use rule. Let’s examine what this rule means and the conditions that need to be met for the use of a copyrighted work to be considered fair.
Fair use is a legal doctrine that allows somebody to use copyrighted materials without permission or a license in specific circumstances. Examples include using copyrighted work in news reporting, research, or teaching. Professionals in many sectors rely on fair use to conduct their work.
Journalists need this rule to allow them to report on issues without fear of copyright infringement. Academics and educational institutions rely on fair use to let them cite other people’s work without permission. Think of fair use as a way to add some balance to the exclusive rights of the copyright doctrine. It allows you to use other people’s work without going through the time-consuming process of getting permission.
Fair use typically requires you to add something of value to the piece you’re using, therefore offering something new to the audience beyond the work’s intended purpose.
It’s often difficult to determine what constitutes fair use as it’s determined on a case-by-case basis and the nature of the copyrighted work. Legal cases related to fair use law occur frequently and often involve a copyright owner disputing another party’s claim of fair use. Still, fair use is more like a set of guidelines than a definite rule.
Criticism and commentary are two of the most common forms of fair use. For example, you may write an article that serves as a rebuttal to a piece written by somebody else. To form that rebuttal, you need to quote the original article so you can follow on with your contribution. The same goes for writing reviews. You may quote part of a book or movie as part of the review, which typically falls under fair use.
You may also be able to claim fair use when using copyrighted work for nonprofit educational purposes. We see this in play whenever a teacher prints or photocopies somebody else’s work and distributes the printouts to students for educational use.
News reporters are also usually covered by the fair use doctrine. If they weren’t, a journalist would not be able to quote from an article or public performance when commenting on recent events.
Academics rely on fair use when quoting from other people’s work in their studies. A good example comes from the world of art historians. To offer commentary or analysis on a piece, an art historian may need to use an image of the piece in their work to demonstrate their points. This is usually considered fair use because the historian isn’t making a profit from the piece. Instead, any monetary benefit they experience will likely come from their analysis of the art.
Finally, there is the issue of parody.
A parody is an original work that mocks, ridicules, or pays homage to another original creation. Typically, this involves almost directly using elements from another creator’s work to make jokes. We see plenty of examples of this in movies. The Scary Movie franchise is a good example. These films often take premises, scenes, and even entire characters from other horror films. However, they do so to create jokes that build upon these films, and even the genre, in general. As such, using original premises and characters is covered under fair use.
In general, noncommercial uses are more likely to be considered fair use in fair use cases than commercial use.
Let’s say you want to use another author or creator’s work as part of a piece you’re making. As long as you get the fair use analysis right, you should be able to do so without legal ramifications. However, fair use can be a complicated concept. Sometimes, something that seems like it should fit in the fair use category doesn’t. You may also find that an action you’d assume isn’t fair use is an exemption.
So, how do you know if you’re getting fair use right?
These quick rules will help guide you as a code of best practices in fair use.
If using somebody else’s copyrighted work promotes your business while impeding theirs, you’re likely not protected by fair use. This is especially true if you and the other creator work in the same industry.
Suppose you work as a life coach. You’re likely responsible for creating courses, writing books, and delivering those creative works to your customers. Say you find a course made by another life coach that you like. It’s okay for you to be inspired by that course. But suppose you copy material from it wholesale. In that case, you aren’t protected by fair use, even if you add your commentary to it.
The reason is that you’re aiming for your course to supplant the other coach’s course. You want clients to purchase your course instead of your competitor’s. Using the other coach’s material directly breaches their copyright because you’re profiting from their work.
The volume and substantiality of content you take from somebody else matters. Fair use does not protect you if you post entire chapters of another person’s book on your company blog.
But what if you only quote a couple of passages?
That’s where the fair use rules become a little murkier. In many cases, quoting a couple of lines from a book is acceptable, assuming you’re providing commentary on them. However, quoting some lines pivotal to the book may mean you’re not protected by fair use. For example, an author may structure their book around a big secret that they share at the end. If you copy that secret and use it in your article, you’re likely not protected by fair use. Even if the secret is only a few passages in a large book, you’re using the book’s selling point.
Thus, you’re taking away a potential customer’s incentive to buy the book.
As a general rule, don’t use any piece of another person’s work if you wouldn’t be happy with somebody using that same content if you created it.
A third factor to consider is that if you’re not adding anything to the material you copy, you may not be protected by fair use laws. It helps to create something new or transformative that offers value to your audience beyond the value from the copied material.
Video game streaming is a great example of such use. Many streamers play through entire games on platforms like Twitch and YouTube. On the surface, this seems like it should be grounds for copyright issues. However, streamers can usually claim fair use because they comment on the game as they play it. They may offer tips, converse with their audience, or share their opinions about the parts of the game they’re playing. Their audience watches as much for the streamer’s commentary as they do for the game they’re playing.
In this example, it helps that many game developers and publishers view streaming as a way to market their games without spending any money. This means they’re less likely to claim infringement of copyright.
So the general rule applies that if you’re adding something new that offers value to your audience, you’re likely protected by fair use.
Returning to the quantity vs. quality issue, quantity still matters when it comes to fair use. If you copy 500 words from a 1,000-word piece, it’s doubtful you’ll be protected by fair use. You’ve used half of somebody’s entire work to illustrate your point, meaning that even your commentary may not be enough to protect you.
Conversely, taking 500 words from a 250,000-word manuscript will likely be okay for fair use if you keep the earlier quality rules in mind.
This is a mistake a lot of creators make. They use somebody else’s content while crediting them, often with a link to the original work. The assumption is that giving attribution allows the creator to use somebody’s work because they point their audience toward the original creator’s piece.
That isn’t necessarily the case.
Some creators are happy to let others use their work if they receive credit for it. But credit is a different concept from fair use. Whether giving credit is enough to justify your use of a piece is up to the piece’s creator. If that creator wants you to get permission directly from them, you can’t circumvent that request and claim fair use. You have to obtain permission.
Fair use becomes a little murkier when using parts of content that haven’t been published yet.
Typically, using somebody else’s work before they’ve published it isn’t fair use. Doing so removes the creator’s ability to determine if they want that content in the public domain. For all you know, the creator may wish to redraft and could eliminate the content or expand upon it after you’ve used it. By using that content, you’re taking away the author’s control related to the piece’s publication, which directly infringes on their copyright.
However, it’s not always cut and dry.
Congress amended the U.S. Copyright Act in 1991 to make provisions for some uses of unpublished work that fall under fair use. While unpublished work is still generally not considered fair use, the fact that the work isn’t published isn’t the only determining factor.
For example, you may get written permission from the creator to use the unpublished piece. This means you respect their rights and are thus protected by fair use. In these cases, it’s often best to consult a copyright attorney to ensure you’re taking the right approach.
Fair use offers a framework that allows you to use other people’s work without their permission. But it’s not a catch-all law that gives you carte blanche to benefit from another person’s original work. You need to understand how fair use works, what the fair use rules are intended for, how they apply to a specific piece, and the purpose of the use.
For business owners, understanding fair use means you keep your company out of the firing lines of copyright holders while being able to maintain your copyright protection. To bolster that protection, it helps to register your copyright with the U.S. Copyright Office so others know that your materials are protected by copyright law.
At Trademark Engine, we make this registration process simple by handling most of the hard work for you. To learn more, visit our website today and start your copyright registration process.
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