Fair use: when you can use a copyrighted work
without permission.

Copyright law gives copyright owners the exclusive right to publish and distribute copies of their works (or authorize others to do so). This right is subject to an important limitation known as the doctrine of fair use, which is part of the current Copyright Act (see 17 USC § 107).

“Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary part of the overall design.”
— Judge Pierre Leval

Although the previous Copyright Act (1909) didn’t have a fair use provision, the doctrine developed through a substantial number of court decisions over the years. It’s an important part of the law, whether copyright owners like it or not. Increasingly, many of them don’t.

Why should you care?

Did you know that the Recording Industry Association of America (RIAA) doesn’t consider ripping your own CDs (that is, those you have lawfully purchased) to your iPod to be a noninfringing fair use? They don’t .

Neither does Sony BMG Music Entertainment. When asked in court whether it’s wrong for people to make copies of music they have purchased, Sony BMG’s head of litigation said, “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Yikes. I suppose there are a whole lot of thieves out there, then. (Do you consider yourself a thief?)

Home movies and criticism as copyright infringement

See this cute video of a toddler dancing to Prince’s Let’s Go Crazy? It’s a 29-second home movie, right? Right. The boy’s mom posted the video to YouTube to share it with family and friends. After all, YouTube is what? A video sharing site.

Universal Music Publishing Group doesn’t think the video is so cute. They think it’s copyright infringement. Mom disagrees — and with the help of the Electronic Frontier Foundation (EFF) she has fought back. They’ve filed suit asking a federal court to protect her fair use and free speech rights. Update: Last I checked, the video is still on YouTube (this case dates back to 2007, btw) and it looks like Mom can recover legal fees incurred in fighting the takedown.

Here’s another story for you. A blogger who goes by the name of Spocko posted brief audio clips of language he found to be offensive and violent from talk radio shows on a Disney-owned ABC station in San Francisco. He and other bloggers passed on these clips to the show’s advertisers, as well.

The result? The clips influenced some of the show’s advertisers to pull their ads. So what did ABC do? They sent a cease and desist letter to the Spocko’s web host, claiming that his “flagrant use” of the clips was “a clear violation ... of copyright.” The web host promptly shut down his site.

Spocko stood up for his fair use rights (helped by, you guessed it, EFF). To date (Oct. 2007) ABC has taken no further action and Spocko is still publishing his views, (with a different web host). But they haven’t retracted their complaint, nor have they admitted that using copyrighted works for the purpose of criticism is quintessential fair use.

These are just two examples out of thousands. They reveal the kind of “we control everything” thinking that has unleashed an epidemic of cease and desist letters and DMCA takedown notices. If you value your creativity and right to free speech (and you don’t believe you’re stealing when you copy a CD that you bought), you should care.

And just in case your home movie, blog, or web site gets you a threatening letter or takedown notice, knowing how fair use works might come in handy.

The fair use rules

If you take a peek at § 107, you’ll see that it contains a list of uses that might be considered “fair” — criticism, comment, news reporting, teaching, scholarship, and research. This list isn’t exhaustive, though, and some uses that come within the listed categories might not be considered fair. That’s because a fair use analysis is fact-driven ... it depends entirely on what you used and how you used it.

Here’s how the facts get analyzed

Section 107 includes four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use.

    (More likely to be fair if the use is noncommercial and “transformative” — the original is, in effect, turned into a new work with a different purpose.)

  2. The nature of the copyrighted work.

    (More likely to be fair if the copied work is factual, as opposed to creative.)

  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

    (More likely to be fair if the amount taken is small or not central to the copied work, but sometimes copying the entire work is fair.)

  4. The effect of the use upon the market or the potential market for the copyrighted work.

    (More likely to be fair if the new work doesn’t compete with the copied work in the marketplace. That is, the new work isn’t a substitute for the original.)

That list is nonexclusive, by the way. Judges are free to consider other factors. A successful defense doesn’t depend on winning all four factors, either. But in practical terms, the fourth factor is the most important one — if the new work isn’t a market substitute for the copyrighted work, the use will probably be fair.

Unfortunately (or maybe fortunately), fair use is kind of squishy.

Because fair use is so fact-specific, you can’t say things like noncommercial use is always okay. In fact, after analyzing 60 federal fair use cases from 1994 through 2002, copyright scholar David Nimmer concluded that “had Congress legislated a dartboard rather than the particular four fair use factors embodied in the Copyright Act, it appears that the upshot would be the same.”

A dartboard. Jeez. Disheartening, yes? You bet. Fair use is unpredictable. There are no rules that say, for instance, if you use less than 10% of a copyrighted work you’re in the clear, or that if a use is commercial it can never be fair use. But that unpredictability also means, at times, that copying an entire copyrighted work will be a fair use, even when the use is commercial.

Here’s the hard part, though: you can’t know for sure that your use is fair until a court says so. But please, that’s not a reason to buy into the notion that you must always ask permission for every single bit of culture you use. Asking permission unnecessarily gives a copyright owner the right to say no, or to say yes and charge you money ... when fair use doesn’t depend permission at all.

After all, copyright’s purpose is to encourage creativity and stimulate thought, not to make you pay $5000 to quote two lines of the lyrics to “Don’t Stand So Close to Me” in your novel.

Use it or lose it

For all its vagueness and unpredictability, fair use is a critical safety valve. It ensures that you and I can communicate our ideas and comment on the culture around us. It prevents copyright owners from overreaching (for example, censoring comments they don’t like) — but only if we use it.

Yeah, I know. The copyright owner can still come after you. But listen, knowing that the fair use provision of the Copyright Act allows you to use copyrighted material for purposes of education, commentary, parody, news reporting, and other “transformative” uses should encourage you to try something.

The next time you want to quote from or comment on a copyrighted work, use the fair use factors to make a good faith evaluation of what you want to do. (And document it.) That fair use analysis will help you stand up to an unwarranted cease and desist letter or DMCA takedown notice from a copyright bully. Knowledge really is power. But only if you use it.