Copyright for Creatives

1.3 Fair Use

So far, we've looked at copyright and ways to legally work within a rightsholder's rights. Now, we're going to turn our attention to one of the most confusing aspects of copyright law: the Fair Use Doctrine. Under Fair Use, copyrighted material may be used under certain conditions for a specific set of reasons without requiring the copyright holder's permission or procuring a license.

To be eligible for Fair Use protection, copyrighted material must be copied verbatim, and only used for criticism, comment, news reporting, teaching, or research. In each case, the use must be limited and transformative. For example, creating a parody or satire where the purpose is criticizing or commenting on a given situation can potentially be protected by Fair Use as it transforms the work by providing commentary. Using someone's music in a YouTube video cannot because it in no way transforms the music, nor is it a limited use of the music.

If the material is being used in an acceptable ways, then other considerations come into play. The purpose of the copying material and the nature of the copyrighted work are taken into consideration. The amount of the original work used in the copying work is considered. And the effect of the existence of the copying work on the marketability of the original piece is looked at, including the author's right of first publishing in cases where the copied work is unpublished.

There are four components of the Fair Use Doctrine. We'll go over each in more detail.

* The Purpose and Character of Use
* The Nature of the Original Material
* The Proportion of Original Work Used
* The Economic Impact on the Original Work

The Purpose and Character of Use

When we talk about purpose and character in this context, what we're really talking about is the purpose the copyrighted material is serving in the new material, and whether or nor the new use brings a new meaning to the copyrighted material.

Ideally, this criterion is designed to protect legitimate uses of copyrighted materials in news reporting, research, and teaching, situations where a verbatim copy might be necessary for accuracy or citation purposes and as such, could be seen as not infringing on the original's copyright. But even scholarly and nonprofit groups using copyrighted material can find themselves running afoul of the Fair Use Doctrine if all they are doing is copying without bringing any sort of commentary or transformative use to the original material. It is interesting to note that you can quote a source verbatim with all of the appropriate citation conventions, and still violate the source material's copyright.

Those incorporating copyrighted material into commercially available projects can fall under the Fair Use Doctrine if they follow all of the rules, but historically they have had a more difficult time securing that protection because the new project has the potential to affect the original material's market impact (we'll look at this later in this chapter). If the creator can prove that they are using a copyrighted material in a transformative manner that conforms to the Fair Use criteria, then they do have a chance of gaining that protection.

The Nature of the Original Material

The second criterion for the Fair Use Doctrine concerns the nature of the work. The new work, that is. Why is it being created? How will this new material be used? These are important questions in establishing whether or not something is protected by Fair Use.

Is this new material being created for factual purposes, like research or teaching, or is it being created for artistic reasons, like adaptations or remixes? Historically, new materials being created for factual purposes have legally secured the right to use copyrighted material under Fair Use more often than material being created for artistic reasons. It's easier to see and understand when something is being used in a limited, factual manner than when it is being used in a broad or creative manner.