Fair Use

What are the Rules of Fair Use?

Fair use is a term you may have heard thrown around in discussions regarding copyright and intellectual property. From the term alone “fair use”, you might think of like, “fair game”, as in you can take a work that falls under fair use and basically do whatever you want with it.

Not quite…

Rather, fair use is a doctrine, unique to US copyright law, allowing for limited use of copyright protected intellectual property without requiring permission from the person or company who holds the actual rights to that property. This rule is based on the freedom of speech rights as dictated by the First Amendment to the United States Constitution. Many other countries have similar rulings, but the actual “fair use” doctrine is specific to the US because it is based in the United States Constitution.

So what falls under the fair use doctrine?

Basically everything. Well, maybe short of say, top secret classified documents from the CIA, but pretty much all intellectual property can be used under fair use. The fair use doctrine covers not individual intellectual properties, like say, the public domain, which includes anything with expired copyrights or no copyright protection at all, but rather, fair use covers how you can use copyright protected property.

So what can we do with copyright protected intellectual property under the fair use doctrine? Well, not quite “anything you want”, but sort of like “everything you want, within reason”. The actual doctrine reads like this…
The Fair Use Doctrine
“Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
That might read like a lot of legalese mumbo jumbo, so to put it simply, education and parody are pretty much completely covered. However, there can be some dispute to this. For example, if a parody of a work only uses that work as a jumping off point to target something else, like say, a novel that steals the plot of another novel only to satirize society at large, and not the original novel, then this falls under copyright infringement.
A parody has to be satirizing the actual content and character of the work that it spoofs to fall under fair use.
Likewise in education, the actual purpose of the work has to be education. A teacher cannot simply screen a movie and charge a dollar per student for the viewing. The teacher actually has to substantiate the claim of education by using the movie as a learning tool, and not simply displaying the movie and leaving it at that
Fair use can actually extend beyond education and parody, and go into derivative works, as well. For example, a music producer might take a one second clip from an existing, copyright protected song, and then use that one second clip as a sound byte in an otherwise original composition. This is where it can get kind of confusing though. In some cases, a judge might declare several seconds of a sampled song to fall under fair use, while in other cases, a one second loop might be deemed copyright infringement. Much of it depends on the originality of the new song itself. For example, you might hear a rap song and not realize at first that the song appropriated a part of one of your favourite songs. On the other hand, you might hear a rap song that uses a much shorter sample, but which basically puts that sample on an endless loop without adding anything to the work besides a few rhymes added on top.

If there’s any confusion, it’s always a good idea to get permission, even if it might not be legally required. For example, Weird Al Yankovic always, always asks for permission before doing a spoof song. Partly to avoid legal consequences, and partly out of respect for the original artist. Of course, that can be difficult if you don’t have Michael Jackson’s phone number on speed dial, so rather, it may be a good idea to read about legal precedence regarding fair use, and get a good idea of whether or not you’re covered before going through with any plans that would lean on the doctrine.