Fair Use in a Nutshell

A Practical Guide to Fair Use
By Lloyd J. Jassin

“Words must be weighed not counted.”
-- Old Yiddish proverb

Unfortunately, many creative projects are stillborn or abandoned, because the author, or the author's producer or publisher partner, was intimidated by the subject of “fair use.”  This uncertainty is regrettable, since, under many conditions, fair use allows you, in the interest of the public good, to copy, display and publish copyrighted works without payment or permission.

While not a substitute for legal advice, this article provides guidelines that will and help you to avoid potential problems and allow you take full advantage of the fair use doctrine.

The Basics

Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission.   The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster."  Against this backdrop, fair use can be looked at as a balancing act.  It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators.   Fair use recognizes that the reason for our nation's copyright laws is not so much for individual copyright owners, but, rather to promote the progress of  art and science.  Therefore, if you are going to borrow something, make sure you are also giving something back.   Use what you borrow as a springboard.  Amplify it.  Transform it with new meaning.  Add something that infuses the original with new insight.  Help evolve the original, don't just kidnap it. 

While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement.   As such, it should be looked upon as a privilege, and not a right.  The central point is that certain fair use decisions involve risk.   

When Do I Need to Ask Permission?

If your work contains "borrowed" material, and you have not obtained permission from the owner of the work, it can only be used if:

(i)  the material is in the "public domain" (i.e. out of copyright);

(ii)  the material is uncopyrightable (e.g., unadorned ideas are common property);

(iii) the work is subject to a "Creative Commons" license; or

(iv) the proposed use is a "fair use."

Some people use Creative Commons licenses to make their works available for free to the public.  The license appears in close proximity to the work.  With a Creative Commons license, the author or creator chooses a set of conditions they wish to apply to their work.

If the you plan to make use of a work that does not fall within these four safe havens, then you must obtain a license or permission from the owner of the work.  Begin the process early.  Locating rights holders is not always easy, and negotiating rights and permissions takes time.

Other Copyright Safe Havens

There are certain types of works that are immune from copyright protection altogether.  For example, copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. This legal conclusion represents an acknowledgment by the courts that the progress of art and science is cumulative.  Innovation, whether in the arts or sciences, doesn't happen from scratch.  For Robin Gross, this is "part of the copyright bargain that strikes a balance between protection for the artist and rights for the consumer."  Copyright does not protect ideas. Copyright, however, does protect the way ideas, concepts, procedures, principles and discoveries are expressed. 

As is to be expected, the dividing line between an unadorned or unprotectable idea,  and one that is sufficiently developed to enjoy copyright protection,  is often murky.   As such, courts have written scores of opinions that attempt to define where the two poles reside.  The task in each instance is finding the proper balance between the free communication of facts while protecting the creator's expression.  If you steal ideas from others, but not their expression, it may be cried down as plagiarism, but, a copycat is not necessarily a copyright infringer.

Fair Use: Subtle Blends of Interests Weighed

Justice Stewart, when asked to define pornography, said, "I can't define it, but I know it when I see it." Like pornography, fair use is in the eye of the beholder.  It is an equitable (and malleable) doctrine that asks, on a case-by-case basis, whether the unauthorized use advances the purposes of copyright law. Unfortunately, there are no mechanical rules to define with precision what is "fair" and what is "foul."    If you wish to rely on fair use, then, your goal is understand the four factors courts weigh to determine if a particular use is a fair use.  Bear in mind, the four factors are not exclusive.  You don't have to prevail on each factor for fair use to exist.

The four malleable and subjective factors that determine fair use are:
  1. The purposes and character of the use, including whether the use is primarily commercial in nature;
  2. The nature of the copyrighted work being borrowed from;
  3. The amount and importance of the portion used in relation to the copyrighted work as a whole;
  4. The effect on the potential market or value of the copyrighted work. Put another way, courts may ask, “Does the use supersede the market for the original?” 
From a client counseling perspective, some fair use assessments are straight forward. "Yes, you can use it." In close situations, it may be impossible to dispel all doubt since fair use is a subjective determination.  As an artist, author, composer or other creator, you may not learn whether a use is a fair use until after it has been displayed, exhibited, performed or published. 

Sixteen Fair Use Guidelines

To help evaluate whether a proposed use is a fair use, consult the following guidelines:
  • Fair use is not a simple test, but a delicate balancing of interests. Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement.
  • While fair use favors criticism, comment, news reporting, teaching, scholarship and research, these uses are not automatically deemed fair uses. Only a court can determine with authority whether a particular use is a fair use.
  • Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use. 
  • Fact-based works, which can be expressed in limited ways, receive less protection than fanciful works that can be expressed in a multitude of ways.
  • Visual works -- especially full color, high res works -- enjoy a high degree of protection under copyright law.
  • If you wish to take a conservative approach, avoid verbatim copying.  Synthesize facts in your own words.  Keep in mind, however, that close paraphrasing may constitute copyright infringement if done extensively.
  • Never copy more of a copyrighted work than is necessary to make your point understood. The more you borrow, the less likely it will be considered fair use.
  • Do not take the "heart" of the work you're copying from. If what you've copied is very important to the original, it will weigh against finding fair use.
  • Courts invariably look at the alleged infringer's reason for copying.   As a general rule, comment upon the material you borrow.  If you transfuse the old work with new blood, bringing new insight and meaning to it, it's a socially productive use, which leans -- when all four factors are tallied -- toward fair use.
  • Never copy something to avoid paying permission fees, or to avoid creating something on your own.
  • Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone transform a "foul" use into a "fair use.
  • Parody (not satire) is a work that that ridicules or mocks another work.  Just because it's a lethal parody, doesn't mean it's unfair.  While parody is a form of blatant copying, it is often protected by fair use.  If it redraws the boundaries of the original work, provokes thought about the original, the use favors fair use. 
  • Being a non-profit educational institution does not let you off the hook. Even non-commercial users can be sued if the use exceeds the bounds of fair use.
  • Don't compete with the work you are quoting or copying from. If the use diminishes the market for the copyrighted work (or portions of it), including revenues from licensing fees, it is probably not a fair use  Many courts cite this as the most important fair use factor.
  • Do not quote from copyright material simply to "enliven" your text.
  • Keep in mind that fair use is a "defense" to copyright infringement, not a right. If you are unsure, or, if permission is denied and you feel the material is important to your work, consult a copyright attorney attorney, or, err on the side of caution and seek permission. 
While essential to free expression, fair use is at best, an unpredictable doctrine.  To paraphrase the Chicago Manual of Style, be bold, but, also heed the Copyright Office's warning, which is, "[T]he endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules."

Ultimately, unpredictability is the price we pay for free expression.  Fairness, like beauty, can be debated, but not easily defined.      

Additional Resources:

Classroom Use Guidelines (not legal authority; but agreed-upon minimums)
Creative Commons

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses. 

He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin

(c) 2015. Lloyd J. Jassin. All Rights Reserved.