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But officer, I wasn’t stealing–it was fair use!

If you read our previous post on the ©, ™, and ® marks, you know that copyright protects “original works of authorship,”1 and that this protection attaches when the work is created.2

One way to get around copyright protection on a work is through fair use. What exactly does fair use entail? Can you use an image you found online if it would go great with promotional materials or a project you’re working on? Spoiler alert: it depends (surprise!).

Fair use is intended to protect uses such as the following:

  • Commentary and criticism:3 e.g., quoting a work in an article commenting on the work.
  • Teaching:4 e.g., making copies of works for the classroom.
  • News reporting:5 e.g., quoting a few lines of a work when reporting on that work.
  • Scholarship and research:6 e.g., quoting another’s work to bolster one’s conclusions.
  • Parody:7 e.g. drawing upon elements of a copyrighted work in a new work, which is intended to comment upon that work.

Nothing’s ever simple with the law, though, so just because your work falls into one of the above categories doesn’t mean you’re in the clear. The following four factors are used to determine if something is fair use (none are determinative):

1. The purpose and character of the use, including whether the use is for commercial or nonprofit purposes.

  • What would work in your favor here? If the use was one of the uses detailed above (e.g., commentary and criticism, news reporting, parody, etc.). If your work is “transformative,”8, changing the meaning or message of the original. For instance, if you added to or modified a famous cartoon so that your new work spoke to the falsity of the narrative of masculine heroics, then that would be transformative. If the use really is transformative, then other factors are less important.
  • What doesn’t work in your favor? If the use is commercial (e.g., use in an advertisement).

2. The nature of the copyrighted work.

  • What would work in your favor here? If you’re pulling factual material (e.g. biographical details)
  • What doesn’t work in your favor? If you’re pulling direct quotes–this is “actual expression,” for the author is expressing himself in describing the events.9

3. The amount and substantiality of the portion used.

  • What would work in your favor here? If you use very little of the original work or just enough for your purposes. If you used the entirety of the work, but you downscale it so that it is just large enough to be recognizable (e.g. where it was formerly a poster, it is now one of many tiny images on the page of a book).10
  • What doesn’t work in your favor? If, even if you use very little of the original work, you pull the essence of the original work.11
  • Parodies: Be aware that even though you need to pull enough from the original work for a parody, you can still pull too much. You should only pull what is enough to “conjure up” the original.12

Helpful hints: The “Let’s Keep It Fair Use!” segment

  • Make your work transformative–don’t copy the original. Add to and change the work.
  • Use the factual portions–but remember that you don’t get a pass if you copy the author’s expression of those facts.
  • Use as little of the original to get your point across.
  • Even if you use very little of the original work, don’t use the very essence of the work.
  • Your work should not be in the same market as the original. This shouldn’t be a problem if your work is sufficiently transformative.

 

  1. 17 U.S.C.A. § 102 (West).
  2. 17 U.S.C.A. § 302 (West).
  3. 17 U.S.C.A. § 107 (West).
  4. Id.
  5. Id.
  6. Id.
  7. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580 (1994) (finding that a parody is essentially transformative and is somewhat elevated in the fair use scheme; further, that a parody by its very nature has to draw upon the original work in order to comment upon it).
  8. Id. at 579.
  9. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 569 (1985) (The Nation printed excerpts from the then-unpublished memoirs of former President Ford; the use of verbatim quotes took from his “actual expression” violated fair use).
  10. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 611 (2d Cir. 2006) (a book publisher used a Grateful Dead poster, but shrank it down to a thumbnail; the court found that it was sized so that it was just recognizable).
  11. Harper & Row, 471 U.S at 569.
  12. Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 758 (9th Cir. 1978) (the court agreed that a raunchy parody successfully critiqued the innocence of Disney, but found that it took too much from the original).
  13. 4. The effect on the potential market for the copyrighted work.

    • What would work in your favor here? If your work is transformative (i.e. changed in meaning) or a parody. A sufficiently transformative work or parody is different enough from the original that it isn’t a market substitute.
    • What doesn’t work in your favor? If the work harms a derivative market–a market that the original work may not have been in, but plausibly could expand to.[13. See Castle Rock Entm’t, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 145 (2d Cir. 1998) (the court found that The Seinfeld Aptitude Test, a trivia book on the show Seinfeld, harmed a market that the creators of the show could plausibly enter).