Fair Use: What is it, and Why Should I Care?

Short answer? “Fair use” is a legal doctrine that allows a person to use another person’s copyrighted materials in certain ways and under certain circumstances without approval or paying fees and without having to worry about a DMCA notice or big, scary fine. Sounds great, right?

It is great, but you can’t just claim “fair use” and be done with it. In this article, I will explain the law of fair use and why it exists, as well as discuss how courts apply it. Finally, I’ll give an example of how you might use it.

What is Fair Use, and Why Do We Have It?

To answer the latter question, you need to understand that copyright law is meant to incentivize people to create by rewarding them with exclusive control over what they create. Generally, this means giving them exclusive rights to make money from their work. However, that control can be stifling to the free exchange of ideas and creation of other works, and the “fair use” doctrine is meant to balance the scales.

Fair use as it exists today is enshrined in Title 17 of the U.S. Code, section 107, which reads as follows (bold emphasis added):

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The bolding highlights the essential aspects of the law, and note that they are very unspecific. The “factors to be considered” offer little concrete guidance on, for example, how much of an effect “upon the potential market” an infringing work must have before it is no longer fair use. The lack of specificity allows the broad framework of the law to be filled in by judicial precedent. In the next section, I will review how courts have tended to think about the four fair use factors listed by the statute.

How Do Courts Think about the Fair Use Factors?

In the American legal system, most court decisions follow “precedent” set by earlier court decisions. Therefore, knowing how courts have interpreted and applied a statute is equally as important as the text of a statute. With that out of the way, let’s get into the factors.

Factor 1: Purpose and Character of the Use

This is the most important factor and has two major aspects:

1. Is the infringing use commercial or non-commercial (basically, is the user making money from the infringing use)? Non-commercial uses, such as a song used in a non-monetized YouTube video, are more likely to be fair use.

2. To what extent is the infringing use “transformative”? The more the original work has been changed or juxtaposed, the more likely it is fair use.

As applied by courts, both aspects are sliding scales, and failing one does not automatically mean fair use does not apply. For instance, recording a television show for later viewing does not transform the show, but since it is not for commercial use is fair use. Similarly, SNL parody skits transform the original work enough to be fair use despite being commercialized.

Parodies such as SNL skits illustrate a very common form of fair use (the other common form being commentary or criticism) and have their own special rules and requirements that deserve their own article. For now, just know that judges recognize that a good parody must, by its nature, use a substantial portion of the original work, more than would be allowed in another context.

Factor 2: The Nature of the Original Copyrighted Work

This, like Factor 1, involves two aspects:

1. Is the work published or unpublished?

2. Is the work factual or fictional?

If a work is published and non-fictional (such as a history textbook), taking from it is almost always fair use (just remember to cite properly). If a work is “unpublished and fictional” (such as a manuscript for an unpublished novel), then taking from it will almost never be fair use. If a work falls into one of the other categories, such as published/fiction (a novel) or unpublished/nonfiction (a diary), then courts will consider the other factors. In the case of unpublished works, the courts give great consideration to whether the author planned to publish them, as “first-publishing” is considered an economic right of great significance.

Factor 3: Amount and Substantiality of the Portion Used

This is fairly self-explanatory. The more of the original work used, the less likely the use is fair use. “Amount” is straightforward: what percentage of the original work (such as words or minutes of video) was used? “Substantiality” is less precise and can be summed up as “no spoilers.” A book review could quote verbatim many passages from a book and be entitled to claim fair use because the passages used were not important to the story, while another user could quote a sentence or two and not have fair use because those sentences reveal the book’s big twist and now people are less likely to buy the book. This ties into Factor 4.

Factor 4: Effect of the Use Upon the Potential Value or Market

This also is self-explanatory, involving the extent the author lost value (money) because of the infringing use, such as how much money could have been made from lost sales? In practical terms, this factor won’t be of much relevance to the average person, but if you post an illegal, downloadable copy of a popular new novel, it might become very relevant because you may have taken away hundreds or thousands of potential sales.

How You Might Think about It

Imagine a very popular series of vampire romance novels are then made into movies. You have read the books and watched the movies and are not a fan, and you want to share what you think about them with the world. In fact, you want to talk about one critical scene in the movie. If you post an uncut video of the scene on YouTube and make occasional comments, that will probably not be fair use. If instead you kept up a constant commentary and had the movie audio largely muted, you would have a better claim for fair use. If you cut up the scene, inserted scenes from other movies for comparison and maintained a continual commentary, you would almost certainly have a claim for fair use, and probably could charge money for your commentary video.

But what if you are a fan of the books, but just wish they were a little more . . . naughty? Well, you could write your smutty fan fiction using the character names and descriptions and post it online for everyone to read for free, and you probably have fair use. It’s transformative, and not likely to interfere with demand for the original books. If you want to start making money off of your fan fiction, however, you should change some things. Maybe you could change the place and character names, eliminate the whole “supernatural” element, and really drill down on the smut. Change just enough, and you can take that fan fiction and turn it into a series of books and even movies. Trust me, it’s been done.

Disclaimer: This article is not a substitute for proper legal advice. It is meant to educate and (hopefully) entertain. I am a law student, not a certified and practicing lawyer– but even if I was a lawyer, it still wouldn’t qualify as legal advice.