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A Breakdown of Fair Use

Is your small business trying to spruce up your website by adding some new pictures? Want to raise money for your nonprofit by hosting a community movie night? Trying to update your marketing materials with a brand-new promotional video with cool background music?

If so, you could be opening yourself up to potential copyright lawsuits and should read up on the doctrine of fair use! An important aspect of starting a small business or nonprofit is exposure, and as organizations work to market themselves and increase awareness of their goals and activities in the communities they serve, they could open themselves up to legal danger. Litigation is expensive, and the cost can be especially devastating to small businesses and nonprofits. In all promotional or informational materials (including brochures, flyers, websites, etc.), organizations need to be sure that they are legally protected from copyright infringement claims.

 What is Fair Use?

Fair use is a legal doctrine that permits the unlicensed use of copyright-protected works (in other words, the ability to use a copyrighted piece of work without the copyright owner’s permission), but only in certain circumstances.[1] If a party is sued by someone claiming copyright infringement, fair use is an affirmative defense they could raise.[2]

Section 107 of the Copyright Act defines fair use, providing the framework for determining whether something is a fair use and identifying examples (including criticism, comment, news reporting, teaching, scholarship, and research) of what would qualify as fair use. [3]

The Four Factors

Fair use claims are evaluated on a case-by-case basis, and thus the determination of whether an act qualifies as “fair use” depends on the details and circumstances of each situation.[4] Therefore, there is no exact rule or formula that determines exactly how many sentences of a book, seconds of a song, or scenes of a movie are allowed under fair use.

However, there are four factors that a court considers in the analysis of a question of fair use.[5] They include:

  1. Purpose and Character of the Use: How is the party claiming fair use using the copyrighted material?

Some questions the court would consider:

·         Is it for nonprofit educational or noncommercial purposes?

o   These uses are more likely to qualify as fair use, but it’s not a guarantee!

·         Is it transformative (aka: did you add something to the work in order to create something new), or use the material verbatim?

o   Transformative works are more likely to be found as fair use. 

  1. Nature of the Copyrighted Work: What is the type of work that was claimed to be infringed upon?

          Some questions the court would consider:

·         Is the work factual (like a news item or technical paper) or creative (such as a movie, novel, or song)?

o   Factual, nonfiction works are generally more likely to be found as fair use. 

  1. Amount and Substantiality Used: How much of the copyrighted material was actually used (both in terms of quality and quantity)?

          Some questions the court would consider:

·         Was only a small amount of the work used, or a lot of it?

o   In general, a fair use argument is more likely to succeed if the use was only a small amount of the copyrighted work. However, this is not always the case! There have been cases where a court has found the entire copyrighted work constituted fair use, as well as cases in which a small amount of a copyrighted work was determined not fair use.

·         Was the portion of the work used “the heart” (or the most important part) of the work?

o   If so, even if only a tiny amount was taken, it is unlikely to qualify for fair use. 

4.      Effect of Use Upon the Potential Market/Value: Does this unlicensed use harm the existing market of the copyrighted work and/or could this cause substantial harm to the value of the copyrighted work if it were to become widespread?

Some questions the court would consider:

·         Would this take income away from the creator by displacing sales of the original?

o   If so, this is unlikely to be considered fair use.

 Common Questions

●       If I’m a nonprofit organization, would all my work be considered a nonprofit educational purpose?

○       No! It’s a common misconception that all use of copyrighted material by nonprofit organizations qualifies as fair use, due to the “nonprofit educational” consideration in the first factor of the fair use test. On the contrary, “nonprofit educational purposes” are often narrowly defined by courts, and status as a nonprofit organization will likely provide no additional benefit in qualifying for a fair use exception.

●       What if I’m hosting an event for my small business or nonprofit? For example, can I host a screening of Wall-E to raise funds for my environmental protection nonprofit under the fair use doctrine?

○       Not necessarily - it’s important to be extremely careful in these types of scenarios. In order to legally use music, movies, or television shows, your organization would need to get permission from the copyright holder, which often involves licensing the material for a fee. To ensure your organization is protected, it’s best to not risk the lawsuit - either license the material, or ensure you are using work that is available in the public domain (and thus not protected by copyright laws).

●       What if I wanted to put a photograph I found online on my website? If I just acknowledge the original photographer, is it totally okay to use the work?

○       Nope! Acknowledging the source material (such as citing the photographer) may be a consideration in a fair use determination, but it will not protect your organization against an infringement lawsuit.

●       But if my organization sticks very carefully to this fair use doctrine, we won’t get sued, right?

○       Again, not necessarily! Fair use is a defense that you can use - not a shield that protects you from litigation. The copyright owner could have a genuine disagreement with your argument that your use constituted fair use, and they are allowed to bring that matter to court.

●       So, what can my organization do to protect ourselves?

○       It’s important to always be overly cautious when using copyrighted material. To ensure your organization is protected from unnecessary litigation, it is always best to either appropriately license the copyrighted work or use work that is in the public domain (and thus completely free for the public to use, without needing permission). If you must use a copyrighted work, think carefully about the four factors, and consider using a worksheet like this as a road map to determine whether you would have a good fair use argument.[6]

By. Caroline Waldo

[1] U.S. Copyright Office Fair Use Index, U.S Copyright Office (Dec. 2022), https://www.copyright.gov/fair-use/.

[2] What Is Fair Use?, Copyright Alliance (2023), https://copyrightalliance.org/faqs/what-is-fair-use/.

[3] Copyright Act, 17 U.S.C. § 107.

[4] U.S. Copyright Office Fair Use Index, supra note 1.

[5] Copyright Act, supra note 3.

[6] Fair Use Checklist, Columbia University Library, https://copyright.columbia.edu/basics/fair-use/fair-use-checklist.html.


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