Fair Use – How to determine if use of copyrighted works without paying or permission is legal
This article has been posted for informational and educational purposes only. This is not legal advice. No attorney-client relationship is created.
In continuing our discussion on Copyrights I’d like to dedicate an entire post to the subject of fair use. It’s one of the most common questions I get – “Do I need permission to use another person’s copyrighted work for something I’m creating?”. Essentially what the questions asks, from a legal point of view, is – “Is my use of another person’s work protected under fair use?”.
Fair Use is an often misunderstood, or sometimes unknown, concept that if misused could land you on the wrong end of a copyright infringement lawsuit. In this post I’ll attempt to clarify what Fair Use is; what are the factors in determining if your use is protected under Fair use; I’ll address some common misconceptions; and I’ll touch on how Fair Use affects copyrights in advertising.
Fair Use of copyrighted works is a concept which allows these works to be used for the purpose of criticism, commentary, news reporting, teaching, scholarship, research etc. Basically, if your use of a copyrighted work falls under Fair Use protections then you can use that work without permission from the original creator and without having to pay any money for the right to use the work.
Courts have adopted a Four Factor test to determine if use of a copyrighted work qualifies for Fair Use.
- The purpose and character of the use, including whether such use is of a commercial nature and is for nonprofit educational purposes;
- A use that has a different purpose or adds new expression, meaning or message instead of substitution for the original will likely pass the portion of the test.
- The nature of the copyrighted work
- Work that is factual or educational in nature is more likely to qualify for fair use
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- Self-explanatory – how much of the copyrighted work is used and to what extent. The less similar the new use is to the original, the more likely it is to be considered fair use.
- The effect of use upon the potential market for or value of the copyrighted work.
- Does the accused work offer a substitute for the original or harms its market through criticism or parody? If it does then this will hurt its chances of being considered fair use.
Myth – Giving credit to the copyright owner automatically grants me fair use
- “All rights go to…” or “I do not own this material” will not give you the freedom to use whatever you want
Myth – Posting a disclaimer gives me fair use
- There are no magic words you can use to substitute your lack of permission from the copyright owner
Myth – If I post content for entertainment or non-profit then I have fair use
- While your intent is one of the four factors courts will look at all factors in totality to determine fair use
Myth – If I add my own original material then I have fair use
- Again, this is one of the factors but the others must be considered as well
Creators of advertisements must be careful about what shows up in the final ad copy.
- Such as posters in the background, t-shirts, and other things that may be copyrightable
- Ex: An ad may contain a photograph of people who are wearing designer clothing, that the models personally own. As the photographer/advertiser, you may still be infringing on the copyright of the brand being worn by the model.
- Think about how certain brands are blurred out on reality TV shows.
The use of others’ copyrighted works in comparative advertising has fared very well, as long as the works at issue are the subject of the comparison.
- The FTC’s position is that truthful and non-deceptive comparative advertising “is a source of important information to consumers and assists them in making rational purchase decisions. Comparative advertising encourages product improvement and innovation, and can lead to lower prices in the marketplace.”