How Do You Know if Something Counts as Fair Use?
By alexash on June 14, 2012
From blogs to Pinterest to Facebook and YouTube, the words "fair use" are thrown around quite a bit. In theory, fair use is a great concept. Unfortunately, 9 times out 10, I find bloggers I speak with aren’t applying it correctly when they think they are. I’m not an attorney, but in writing about social media netiquette and ethics, I’ve become aware of how misunderstood certain legal basics can be. So, let’s talk about the myths, the misconceptions and the meaning of fair use from the layman’s perspective.
FACT: As stated by the U.S. Copyright Office: "Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes ... Whether a particular use qualifies as fair use depends on all the circumstances."
Fair use is an aspect of U.S. copyright law that allows people to use portions of copyrighted works without permission as criticism, commentary, education, reporting, parody, or satire. Fair use is fairly subjective, and court decisions as to whether a use of a copyrighted work is fair are never cut and dried. What one court decides is fair use could be considered copyright infringement by another.
Therefore, it's important to understand how fair use is determined before attempting to use it as a defense. (For more about how tricky fair use can be, see the discussion on the topic of copyright from BlogHer Food last week.)
It all starts with this: ©. Every image or written work has automatic copyright protection by law. The little logo doesn’t have to be present. In fact, it’s best to assume anything and everything is under copyright unless you’re told otherwise. Copyright allows the creator/owner control over how their work is used, which isn't necessarily about making money. The right to decide how one's work is reproduced is priceless. As I always say, the most important thing about this symbol: © isn’t this one: $.
Four Questions to Ask Before Using Someone's Work
Fair use is decided on four important factors. They aren’t multiple choice. All must come into play.
1. The PURPOSE of the work: How are you using it to begin with? And why? Context is key. In fact, this is the most important thing to consider. The work you're using doesn't belong to you, so how are you using it in a way that justifies that? If you monetize your blog, tread carefully. Essentially, you'll be profiting off the words or images of someone else, and fair use favors non-profit and education purposes.
Ask yourself: How am I transforming this into something more than a simple cut-and-paste job?
2. The NATURE of the work: Where is the material coming from? Once again, it's subjective, but the type of content you want to use is important. It goes back to the issue of WHY copyright matters. As defined by Stanford University's Copyright and Fair Use Center:
You have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels... [or] material from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his or her expression.
Ask yourself: Am I sharing something in a way that could bring it more exposure than it already has had? If so, you’d want to ask permission.
3. The AMOUNT of the work: How much do you want to use? There is no percentage of a work or word count that qualifies as fair use. It all goes back to context. In most cases, if you share so much content that someone wouldn’t have to read the book, see the film, or view the image in full at it’s original source, you’re not playing fair.
Ask yourself: am I sharing content without giving away the full story?
4. The EFFECT of use: Who could be hurt or helped when you use it? Back to the importance of copyright. The right to decide how work is copied gives people the ability to maintain the value of their work, and also to choose how it's represented. That's why fair use allows for reproduction in small bits, to be used in ways that don't devalue the original. When something goes viral, it can hurt a creator. More often than not, I speak to working artists and craftspeople, writers and photographers who find their work misused. These are livelihoods at stake.
We have to respect that the copyrighted content someone places online is for them to decide to shared. It's not a bad thing if someone wants to limit her exposure online. It's not a bad thing if she wants to place everything in the public domain. Both should be respected equally.
Ask yourself: In using this, am I potentially hurting someone’s ability to make a living?
Unfair Use: Common Myths and Misconceptions
It’s fair use because I made a comment under the image.
I’ve heard it said on more than one occasion that a comment on a Pinterest pin or an image in a blog post makes it fair use. Not true. Fair use for the purpose of commentary isn’t the same as a comment or caption. How would you say a comment on a photo transforms the work substantially enough to justify using it without permission? This is why it is crucial you have copyright permission before you share content on Pinterest, Facebook, Tumblr, Twitter, and other social sharing sites. It’s unfair to share content that is not yours.
It's fair use because I never quote more than three lines at a time.
With words from a copyrighted work -- a song, a script, a book -- there’s no magic number that constitutes fair use. It’s context over quantity. Three lines could be an entire poem. That is why the amount of a copyrighted work can't be decided by the percentage of content used, but rather how much overall information is being shared. Choose your words and images carefully.
It’s fair use because it isn’t for commercial purposes. It’s just on my blog.
While it’s true that non-profit use of copyrighted material might have more fair use protection, the concept of fair use was born before the blogosphere. It's also important to remember that your blog is commercial if you monetize your site in any way. Whether you make a small living or a large one blogging, the audiences that your blogs reach are vast and the amount of exposure a work can receive may effect its value, which is potentially unfair. When in doubt, ask permission or consult an attorney
It's fair use because I credited the source.
I know I’ve said this before, but I think it’s so important to remember GIVING credit isn’t GETTING permission. Giving credit doesn’t make something fair use.
For an attorney’s perspective on issues such as this, I recommend Sara Hawkins' Blog Law series (and this piece on fair use). I also believe the Thinking Through Fair Use tool from the University of Minnesota is a resource everyone should bookmark.
Please be aware that fair use is only applicable in the U.S. Similar fair dealing rules are used in Australia, Canada and the UK, but laws vary and it's important to understand how they apply to you online.
Disclaimer: I write about social media ethics and netiquette. None of this is to be considered legal advice.
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