Fair use facts must be distinguished from fair use misinformation and myths. Fair use is a much discussed and often misunderstood doctrine in the U.S. Copyright Act. This article helps you enhance your copyright literacy by demystifying the fair use principle and equipping you with five essentials facts about fair use.
Fair Use Facts
Below are five essential facts about fair use that will help guide you through the fair use maze.
ONE — Fair use became part of the actual U.S. Copyright Act relatively recently. Fair use is a doctrine created by courts in the nineteenth century. It wasn’t until the 1976 U.S. Copyright Act that fair use became codified and set out in the Act.
TWO — Fair use is intentionally open and flexible; its language allows you to apply the doctrine to your own specific fact situations. Many who apply fair use complain that it’s ambiguous and should be more specific to fact situations. To effectively apply fair use to your situations, you need to understand as much as you can about this doctrine, read various opinions about fair use, and gain practice and wisdom in applying fair use to different scenarios.
THREE — Fair use may be applied by individuals or corporations, by commercial and noncommercial entities and in for-profit and nonprofit situations. It all depends on the facts of your situation and how your facts fit within the four fair use factors set out in the U.S. Copyright Act as follows.
(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.
FOUR — Fair use is never a certain thing unless a judge in a court of law makes that determination. This means that getting comfortable with fair use is important, as is being able to make a judgment call as to whether fair use applies to your use of copyright-protected content.
At the same time, it means understanding copyright risk management and being able to minimize your risks of unauthorized uses of copyright materials. For more in-depth information on risk management, see Best Practices to Lower Your Copyright Risks.
FIVE — A good place to start your fair use research is on the website of the U.S. Copyright Office. You’ll find straightforward information on the meaning of fair use as well as the Fair Use Index described below.
U.S. Copyright Office Fair Use Index
The U.S. Copyright Office hosts a Fair Use Index. The goal of the Index is
to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions.
You can search the Index by category (e.g., literary, artistic, musical work) and by your type of use (e.g., education/scholarship/research, parody, or internet/digitization). The Index tracks court decisions at various court levels and isn’t intended to be a comprehensive archive of all fair use decisions ever decided. It’s designed for lawyers and nonlawyers and is user friendly. It’s a great place to obtain a general education on fair use and how courts have decided fair use decisions to specific circumstances.
The Index sets out the name of the case, court, jurisdiction and year of the decision, as well as whether fair use was found by the court. You can click on the case name/citation for a summary of the case that includes the key facts, issue, outcome and more information about the decision.
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Learn how to make copyright decisions and fair use analyses in the Copyright Leadership Certificate program.