Fair use is a legal doctrine that permits the limited use of a copyright-protected work without the copyright owner’s permission. The law favors uses for “purposes of criticism, comment, news reporting, teaching, scholarship, or research.” However, such a use must pass the following four-factor balancing test to determine whether it is indeed a fair use:
- The Purpose and Character of the Use;
- The Nature of the Copyrighted Work;
- The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole;
- The Effect of the Use upon the Copyrighted Work’s Potential Market or Value.
To determine if the use is fair under these factors, a court assesses the use as follows.
1. The purpose and character of the use:
- A use for a nonprofit or educational purpose is more likely to be a fair use than a use for a commercial purpose.
➢ Transformative vs. Superseding/Substitute purpose
- A transformative use weighs in favor of fair use. A transformative work uses the original work in a different manner or for a different purpose or function by adding new expression, meaning, or message to the original.
- A superseding use weighs against fair use because it just replaces the original or functions as a substitute.
➢ Good faith weighs in favor of fair use
- Try to get the copyright owner’s permission.
- Lawfully obtain the copyrighted material.
- Give attribution and don’t remove a copyright notice or attribution.
- Don’t use the material to compete with the owner, such as trying to “scoop” a story.
2. The nature of the original copyrighted work:
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole:
- Examine the quantity and the quality of the material used.
- If the amount taken is relevant to the proposed use, then the use is more likely a fair use.
- The use of unprotected facts and ideas is more likely to be a fair use than the use of the work’s original or creative expression.
- Even if a small amount is taken, however, using the “heart” of the work weighs against fair use.
4. The effect of the use on the work’s potential market or value:
- A use that usurps the market demand for the original work is not a fair use. So, a non-transformative commercial use is more likely to be a direct substitute for the original.
- A use that interferes with the marketability or potential market of the original work is less likely to be a fair use. The potential market includes derivatives—i.e., works that don’t directly complete with the original.
- However, copyright owners cannot claim market harm where unwanted criticism of or commentary on the original, such as a critical book review, decreases the original work’s demand. So, copyright owners cannot use copyright law as a censorship tool.
- Try to get the copyright owner’s permission or a license.
- There is NO newsworthiness exception.
- While giving attribution doesn’t provide full protection, don’t remove a copyright notice or info about the source.
- Disclaiming a connection to the original author won’t provide legal protection.
- Simply not earning money from a secondary use doesn’t provide protection.
- Fair Use Checklist
- Fair Use in Journalism: You Be the Judge!
- Set of Principles in Fair Use for Journalism
- Copyright Law and Fair Use for Journalists
- The Fair Use App
Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and Carolina Week, the School of Media and Journalism or the University of North Carolina at Chapel Hill.