Copyright law is important and in my opinion an extremely important aspect of the art and creative world. Of course, some argue that copyright law is stifling and keeps artists from being able to fully express themselves through their work.
No matter what side you sit on, the law is in place to protect the original works of authorship each individual creates from being passed on as someone else’s. Copyright infringement is a serious offense that carries some serious consequences.
However, the law has recognized over the years that it is important from both a creative and public policy standpoint to allow people the freedom to use parts of works that are copyrighted by someone else. That is where the term fair use comes in.
A lot of the entrepreneurs I work with are highly creative, and I get asked a lot what, how much, and for what purpose can they use something of someone else’s or vis versa. And although the fair use analysis is extremely difficult to apply since most courts can apply a variety of different standards, there are some general principals we can go over here today. Hopefully, this will help you determine if what you’re doing is actual copyright infringement, or if you fall into the fair use exception to the law.
As a warning, the fair use analysis is very case dependent. So every time you as a creator plan to utilize anything that you didn’t create on your own, you’re going to want to run through the analysis and possibly speak with an attorney about your idea.
There are four factors used in determining if the use of the copyrighted work is considered fair use. Not one factor is decisive, all must be considered along with a few additional questions. Once you go down this road you will likely end up with a likely ok or likely not ok rather than a straightforward definitive answer.
The Four Factors:
- the purpose and character of the use
- transformative use
- the nature of the copyrighted or original work
- the amount and substantiality of the portion taken
- the effect of the use on the potential market for, or value of the original work
- Purpose and Character of the use
Of the four factors, this is the only one that focuses on the new work rather than the original. The Supreme Court has emphasized the importance of this factor in previous cases. Purposes favored tend to be things like education, research, news reporting, and even criticism or commentary. The way to view this one is seemingly simple. Has the work used helped create something brand new, or was that work merely copied into another work? And is that work for one of the above reasons?
You will read a lot of things citing the transformative use of the work, which is a relatively new addition to fair use law. However, it can be considered within this element as it has similar questions. A work is considered transformative if it uses the original work in a new or unexpected way. And, if your work is considered transformative but fails to meet the other factors you may still win a fair use argument.
Parody or criticism are the two examples used most often in teaching this concept. In a parody, the creator “transforms” the original work by imitating it with a deliberate exaggeration, and almost ridiculing the original work.
- The Nature of the Copyrighted or Original Work
From a public policy standpoint, creators have more leeway to disseminate facts or information that might benefit the public. Works drawn from factual works like biographies and news stories are more likely to be considered fair use than something like a fictional novel or movie.
The second part of this is to consider whether or not the work is published or unpublished. If you borrow from an unpublished work, that will go against you in the fair use analysis. Essentially, if the original author or creator didn’t want their work to be public, the court is not likely to allow you to make it so.
- The Amount and Substantiality of the Portion Taken
This needs to be looked at in two ways.
Amount: a lot of people will tell you that less is more and that is that. However, this needs to be looked at from a proportionality standpoint as well. For example, a quote of 25 words from a 30- word article might be less fair use than a 25-word quote from a 300-word article. Sometimes you might be able to use almost all of the original work and still make a successful fair use argument. But, less is always more likely to be fair use to the courts.
Substantiality: this portion of the analysis asks whether or not you are using something from the “heart” of the work or whether you are borrowing something more on the outside of the work. If it takes from the heart or core of the work this is less likely to be considered fair use.
- The effect of the use on the potential market for, or value of the original work
The fourth and final element looks to whether or not the new work in question would substitute for a sale the original work’s owner would have otherwise made either to the person who is using the work or to others. This element makes you think about whether or not there is an existing or even potential market for the original work that the new work might disrupt. Courts tend to favor the original work if there is an actual or developing market. But, we have seen instances where they found fair use even when causing market harm.
Analyzing your Situation
This is obviously why you’re here and the unfortunate thing is it is usually very difficult to apply the basic ideas of fair use to a situation without a very fact-intensive analysis as well. I would suggest talking about your idea with as many people as possible to get their opinions. Reaching out to consult with an attorney is never a bad idea in this situation either. Finally, you can utilize some of the checklists available online such as this one from Columbia University. I found a few that were comprehensive and helpful in getting your analysis started.
As always I hope you found this helpful. If you’re concerned about your use of someone else’s copyrighted work don’t hesitate to reach out. I would love to go over the facts with you.
Please note that this is not meant to be legal advice for you or your situation, this is merely some legal research and knowledge on the given topic.