Anybody remember Usenet? It started way back in 1979 and was one of the first discussion forums on the internet. Most people have moved on to more modern forums like Reddit or Facebook Groups. But no matter which discussion forum you’re on, copyright fair use is one topic creative folks constantly ask about. This is why we think fair use deserves its own article in our series on how to run a creator business.
Fair use is a defense when someone accuses you of copyright infringement. There are other defenses you can use, and people often confuse these with fair use. Technically, the other defenses are called copyright exceptions and copyright exemptions. Another defense is that the supposedly copyrighted work isn’t even copyrightable. You can’t sue someone for infringing something that’s not even protectable.
It’s important for a creator to understand copyright fair use, copyright exceptions, and copyright exemptions. Sometimes, other people will use your work without your permission, but fair use, etc. allows them to do this. Other times, you’ll need to use other people’s copyrighted work, and you’ll want to understand if you can do it without running into trouble.
The analysis for copyrightability, copyright exceptions, copyright exemptions, and copyright fair use is very dependent on specific facts. We’re not going to give legal opinions in this article. Instead, we hope to give you a general understanding of these areas. If you have a specific question for your specific set of facts, you’ll need to talk to an IP lawyer who practices copyright law or IP litigation. (Here’s our article on how to find an IP lawyer.)
Let’s start with what is actually protectable by copyright law.
- To Understand Copyright Fair Use, You Have to First Understand What is Copyrightable
- There Are Four Ways You Can Copy a Copyrighted Work Without Penalty
- If a Work is Not Copyrightable, Then You Can’t Infringe
- Some Activities Are Exempt from Copyright Infringement
- Copyright Law Also Carves Out Limitations in Copyright Protection
- Fair Use is a Type of Copyright Exception That Depends on Detailed Facts
- Creators and Copyright Fair Use
- What Happens if a Use is Not Fair Use and Doesn’t Fall Into a Copyright Exception or Exemption?
To Understand Copyright Fair Use, You Have to First Understand What is Copyrightable
If you haven’t already, we highly recommend you skim through our article on basic copyright law. In that article, we discuss what copyright can protect and your rights as a copyright holder. Fair use, etc. are copyright defenses. So, unless someone accuses you of taking one of their legally protected rights, they don’t have a valid complaint.
Be sure to understand the section on derivative works. In our experience, not understanding this concept is how creators often get into trouble.
There Are Four Ways You Can Copy a Copyrighted Work Without Penalty
Under US copyright law, there are four ways you can copy/use a copyrighted work without penalty. These ways are:
- The work is not copyrightable or the copyright has expired.
- The work falls under a copyright exception. The exception is written into the copyright law.
- The work falls under a copyright exemption. You are allowed to use/copy the copyrighted work under specific circumstances.
- The use is subject to fair use. Fair use is a type of copyright exception, but it’s so well known and so complicated that we’ll talk about it separately.
We’ll spend the rest of this article looking into each of these four ways.
If a Work is Not Copyrightable, Then You Can’t Infringe
If the copyright on a work has expired, then of course you can copy without penalty.
If a work is not copyrightable, then you can also freely copy. Sometimes, it’s easy to tell what is and is not copyrightable. Other times, it’s very fact specific. In many copyright lawsuits, this issue comes up early on, so there are a lot of court opinions on what is and is not copyrightable.
Copyright Law Defines Some Items That Are Not Copyrightable
There is a list of what is not copyrightable in the US Copyright Act (Sec. 102(b)). These are:
- Ideas
- Procedures
- Processes
- Systems
- Method of operation
- Concept
- Principle
- Discovery
But a specific way to express the idea, procedure, process, etc. can be copyrighted. For example, an idea for a story can’t be copyrighted. But once the idea is written down as a novel, then the novel can be copyrighted. A physics principle can’t be copyrighted, but a book explaining the principle can be copyrighted.
Three Criteria for Something to be Copyrightable
For a work to be copyrightable, it has to be:
- An original work
- Of authorship
- That is fixed on a tangible medium
Lawsuits attacking the copyrightability of a work usually attack the “original work” part of this 3 part requirement. Basically, in order to be an original work, you have to put in at least a little bit of creativity to come up with the work.
We talked about what is an “original work” in our copyright basics article and gave a lot of examples. In order to not duplicate content on our website, here’s the link to the copyrightability section.
Some Activities Are Exempt from Copyright Infringement
US copyright law exempts some types of activities from copyright infringement. The activities are found under Sec. 110 of the Copyright Act. They’re too detailed to list here, but examples include:
- Performance or display of a work by a teacher to pupils in a face-to-face setting (e.g. an English teacher showing a recorded performance of Hamlet on TV)
- Performance of a work of a religious nature during religious worship
- Playing music or showing videos at a food establishment (this one has strict square footage, number of speakers, and TV screen size limitations)
If you wish to take advantage of these exemptions, we recommend you look into the specific section of the law and follow the requirements exactly.
We don’t think creators are likely to need to take advantage of these sections to avoid infringement. If you’re the copyright owner, just know that sometimes you can’t enforce the copyright of your work.
Other than mentioning here that the notion of copyright exemptions exists, we won’t go into them in any more detail.
Copyright Law Also Carves Out Limitations in Copyright Protection
US copyright law also carves out entire areas from copyright protection. These areas are in several sections of the US Copyright Act. Again, we won’t go into too much detail on these copyright exceptions because they’re not usually relevant to a creator’s activities. But examples of these exceptions include:
- US government works are not copyrightable. This means Congressional reports, government studies (e.g. environmental studies), court opinions, and similar are not copyrightable.
- Public libraries have a right to copy and reproduce works. The libraries have to be public and the right to copy and reproduce has to be related to archiving the library’s collection.
- First sale doctrine. A copyright holder has the right to make money only once for each copy of the work they sell. This usually applies when the copyrighted work is sold on a physical medium. So, when you buy a physical book, you can sell it again without infringing the copyright of the writer. If you buy a music album on a CD, you can sell the CD without infringing the copyright of the owner of the musical work. You have to be very careful with the first sale doctrine, though. Modern copyrighted works are often licensed instead of sold on a physical medium. A good IP licensing lawyer can often get around the first sale doctrine by writing the license agreement in a specific way.
Fair Use is a Type of Copyright Exception That Depends on Detailed Facts
Copyright fair use is a squishy defense to copyright infringement. You hear it a lot on the internet, on chat forums, often as a part of a heated exchange.
It’s important for a creator to understand copyright fair use. Sometimes, you’ll want to be able to use someone else’s copyrighted work without having to ask permission (or you know they won’t give you permission). As the copyright holder, you’ll need to know when you can’t stop others from using your work.
Fair Use is a Part of US Copyright Law
You can find fair use in Sec. 107 of the Copyright Act. It’s a four-factor test. Here are the factors:
- Purpose or character of use. Is it commercial use? Is it for nonprofit educational use?
- The nature of the copyrighted work. Is the work a scholarly article? Or is it a movie that the makers want to charge money for?
- Amount and substantiality portion of the work that was copied. Was the copying minimal to make a point (e.g. for criticism)?
- Effect of the use on the potential market for the value of the work. Selling pirated music means the real artists will lose a sale to the same audience.
These four factors are not exclusive, and courts don’t have to give them equal weight.
There is one general trend in court rulings that’s important: if you make money off someone else’s copyrighted work and you don’t share your profits with them, then it’s probably not fair use.
General Categories of Copyright Fair Use
Even though every fact situation is different, over the years, courts have usually concluded that there are some categories of use that are usually fair use. These categories are:
- Criticism (parody can be criticism or commentary)
- Commentary
- News reporting
- Teaching (including making multiple copies for classroom use)
- Scholarship
- Research
But this isn’t an exclusive list. You always have to use the four fair use factors to analyze every situation. So, other uses can also be fair use. Plus, the courts will always look at the detailed facts of a specific case.
For example, a book review article might look like legitimate criticism. But if the critic copied several chapters from the book instead of using only the minimum that’s necessary, then the critic’s copying of the book might not be fair use.
The Copyright Fair Use Analysis is Fact Intensive
It’s hard to decide if a specific use is fair use because the conclusion depends heavily on the facts. There are a lot of cases looking at whether one use or another is fair use. You almost have to sue before you can get an answer.
Often, a transformative use of a copyrighted work suggests fair use. A work is transformative if it changes the nature of the original work. For example, parodies are often transformative works. So is a news report about all the movies that are showing in theaters this weekend, with clips added.
Here’s an article from Stanford University’s library that summarizes a lot of copyright fair use lawsuits. The article should give you a good flavor of what may or may not be fair use.
The US Copyright Office also recognizes how much fair use depends on the facts. So, they’ve made a database of court opinions on fair use. The database is free. You can search the database to see if your particular set of facts has come up before. This way, you might be able to get a firm answer to your fair use question.
If you can’t find an answer in the database, but you really need to know the answer, we recommend you contact a copyright lawyer to get an opinion.
Creators and Copyright Fair Use
As a creator, you might have to deal with fair use both as a copyright owner or as the maker of an item that may or may not be fair use. Often, the question comes up when creating fanfic, fan art, or video or audio mashups.
Sometimes, a fan work can be fair use. But other times, it is not. Remember: the fair use analysis is fact intensive. So, the answer will depend on whether and how you’ve transformed the original work, if you’re making money off your fan work, and similar.
If you’re a creator who makes fan work, know that the original work is almost always copyrighted. As such, it’ll have a copyright owner. And the copyright owner gets to decide if they like or dislike copying.
Some copyright owners see fan work as free publicity and free marketing. They welcome it even when it’s not fair use. But others might not like it at all and might enforce their copyright.
But use a little common sense too. If Disney sued everyone who cosplays at Star Wars conventions, they would be out of fans (and paying customers for their movies) very quickly. They obviously don’t do it. But if you make the Mandalorian costume and sell it online, Disney might sue you. Or, if you make Darth Vader video mashups and have millions of followers on YouTube, Disney might want to talk to you too.
For creators who want to create derivative works, your safest approach is to contact the copyright holder and get permission. Or, if the copyright owner contacts you and asks you to license their work, agree to it, within reason.
What Happens if a Use is Not Fair Use and Doesn’t Fall Into a Copyright Exception or Exemption?
Sometimes, as a copyright owner, you’ll be convinced that someone is infringing on your work. Or, as a maker of works, you’ll be accused of infringing someone else’s work even though you believe your use is fair use. What happens then?
You’ll have to decide if you want to file or defend a copyright infringement claim. In the US, there are three ways to do this. That’s what we’ll talk about in our next article:
How to Handle a Copyright Claim Dispute, for Creators
DISCLAIMER: This article does not constitute legal or accounting advice. Instead, it contains general information. The information gives you the background you’ll need to hit the ground running when you do go get advice from a lawyer or accountant. Only lawyers and accountants properly licensed in your state/country are qualified to give you legal or accounting advice.
Questions? Comments?
