Fairly Useful: Why Fair Use Is A Simple, But Dangerous Legal Doctrine

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I always knew that I would get around to writing a post on Fair Use much like I did a few weeks ago with the Work For Hire doctrine.  If I'm being honest, I should have done this a long time ago.  I have a fluctuating list of 15 to 25 topics for this blog and Fair Use has sat squarely at the top for almost six months. The only reason I neglected it: a healthy man-sized dose of procrastination (by which I mean I was more interested in writing about other topics).  But two things happened this week that made me realize I had to finally tackle the purple-fanged monster sitting at the top of my list.  First, I was asked by several readers to discuss Fair Use in greater depth than I have in the past.  And second, I was accused by a reader (who is not a lawyer, by the way) of not understanding how Fair Use works, an allegation that made me so mad I almost hulked out.  I'm certainly not perfect (my wife will regale you with stories confirming this fact), but I can guarantee you that if I'm writing about it on this blog, then I know what I'm talking about.

So in an effort to prove that naysayer wrong and shore up my ego, here's my take on what you need to know about Fair Use, a widely misunderstood doctrine that is used by artists and non-artists alike, oftentimes without even realizing they're doing it.

What is Fair Use?

Normally, when you use someone's copyrighted work without permission, that would constitute copyright infringement (only the owner has the exclusive right to reproduce, sell, or otherwise use their work) and you could end up having to fork over a handsome fee to the copyright owner if you're sued and you lose.  However, Fair Use is a legal defense that you can assert in certain situations that gets you around that pesky infringement thing.  In essence, Fair Use allows you to legally use someone else’s copyrighted work without their permission.  That's all it is.

But while the general concept of Fair use is easy to understand, it's not always easy to apply in practice.  That's because, like most things in the law, there's no hard and fast rule about it.  You have to apply a number of different factors (four of which are used regularly) to the situation and balance them against each other.  I've listed them below in their original Legalese, along with  modern English translation:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
    • English Translation: What is your intended use of the original work? Profit?  Parody?  Education and criticism?  Has your use transformed the expression or meaning of the original work?  Profit is generally frowned upon, but parody, education, and news reporting/criticism are more likely to be given Fair Use protection (without Fair Use,  CNN would get sued every hour of everyday). The more your use changes the original work, the better a Fair Use defense will be.
  2. The nature of the copyrighted work
    • English Translation: Is the original work published or unpublished?  Fiction or Non-fiction?  Fair Use is generally more applicable if the work is non-fictional (based on facts) or published.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    • English Translation: How much of the original work are you using?  All of it? Some of it?  The less you use, the more likely you can assert Fair Use.
  4. The effect of the use upon the potential market for or value of the copyrighted work
    • English Translation: Does your use deprive the copyright owner of income or undermine a new or potential market for the copyrighted work?  Basically, if your use can take money out of the copyright owner's pocket (even if you're not using it for your own personal financial gain), then that's infringement.

I could spend days discussing each of these factors in greater depth, and maybe at some point down the line I'll devote individual blog posts to the vagaries and intricacies of each one.  For now I'll just say that none of these factors intrinsically carry more weight than the others and judges have a lot of discretion over how to balance them.  For instance, a lot of people assume that if they don't profit from the use of someone's copyrighted work, that will be enough to allow them to apply Fair Use.  But some courts have de-emphasized the importance of financial gain; if the copyright owner's bottom line could be negatively affected, then using their copyright can still be infringement (and thus not Fair Use) even if the infringing party never makes a cent.

Misconceptions

Like the profit issue I just mentioned, there are a bunch of  other misconceptions people regularly make about Fair Use, so I thought I'd mention a few of the more common ones here.

  1. Acknowledgement of the source material will give you Fair Use protection.  Not even a little bit.  While it's a good CYA move to credit the artist/author/copyright owner anytime you use their work (whether you asked for permission or not), simply giving them credit doesn't get you off the hook.  You can still be sued for infringement and found liable, based on how the factors above are weighed.
  2. The copyright owner can prevent your Fair Use of their work simply by adding a disclaimer.  Also not true.  In the past I've seen artists try to prevent unauthorized use of their works by attaching a note or disclaimer saying something to the effect of "this work is not subject to Fair Use."  Um, yeah buddy, it is.  Sorry.  Fair Use is always applicable and takes precedence over the author's desire, assuming of course that your use falls within the above-mentioned factors.
  3. If you copy the entire work, you don't get Fair Use protection.  Like I said before, the amount of the work used is only one factor that is considered.  Now using the entire work certainly won't help you and I generally advise against it, but depending on the other three factors (especially if your use transforms the meaning or expression of the original work), your may be able to use the whole piece and have that be a Fair Use.
  4. Fair Use will prevent you from being sued.  NOPE!  This is probably the biggest mistake I see people make and it's an assumption that makes Fair Use extraordinarily dangerous, so watch out.  Do not assume that Fair Use is some "get-out-of-jail free" card that will protect you from litigation.  Fair Use does not prevent you from being sued.  Ever.  Fair Use is what lawyers call an "affirmative defense" and it can only be asserted after you've been sued.  This is why it's really important that artists don't rely wholesale on their understanding of the doctrine, even if they're right!  While Fair Use can be an effective tool, it can only be exercised once you're in the middle of a legal kerfuffle which will cost you lots of time and money.

As with many of the topics I discuss on this blog, I over-simplified here and left some stuff out for the sake of brevity.  My goal here isn't to give you a Master's level understanding of the details and intricacies of Fair Use - or any legal doctrine for that matter.  Rather, I'm trying to make you aware of the forces you play with when you use someone else's copyrighted work.  Whether your use of something qualifies as Fair Use actually depends very heavily on the specifics of your case.  And even if you think your use qualifies for Fair Use protection, don't simply make that assumption and leave it there.  Ask for permission to use the work, and if you elect not to ask permission, seek professional legal advice to see if your intended use is covered by Fair Use.  

Fair Use is no mystery, but if you don't treat it with respect, it can do irreparable harm to you.  Just ask Shepard Fairey.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA