An Overview of Fair Use

What is it?

Copyright law allows an author a nearly absolute right to restrict others from copying their original work, but fair use can be seen as its counterweight. Fair use permits limited use of copyrighted material without the need to get permission from the copyright owner. The most obvious example of this in practice is taking a still photo or a snippet of a film in order to review or comment on it. This sounds fantastic for the documentary filmmaker or zero-budget creative, doesn’t it? Well, there are a few asterisks attached to fair use that you must take into account before rushing headlong into using a Hans Zimmer track in your next short.

To get a better idea of what is meant by “fair” use, we have used some common scenarios below to illustrate when your use might be considered “fair” or when it may be considered copyright infringement. However, you should note that not all fair use factors are equally weighted. Depending on the copyrighted work you want to use and your particular intended use of it, some factors may be more or less important.

The Fantastic Four Factors

1. Are you using copyrighted material as the object of social, political, or cultural critique?

This involves using portions of copyrighted material, such as a snippet of text, an image, or a short video clip, in order to critically comment on that work. Such use is generally seen as a core example of fundamental fair use, as long as the user is actually commenting on the work in some way. This means that such use is very safe and will, for the most part, encounter no resistance from the copyrighted owner. Even if this use tends to damage the market for the original copyrighted work (for example, a scathing book review quoting bland passages from a vampire romance novel) it will likely still be viewed as fair use.

The one major caveat for this type of use is the principle that you should not use more of the original copyrighted work than is necessary to get your point across. The more you use of the copyrighted work the more it may seem as if you are attempting to create a substitute of the original, which will weigh heavily against your chances of being able to assert fair use.

2. Are you quoting copyrighted works of popular culture to illustrate an argument or point?

Unlike the above example, this use involves using the copyrighted work to comment on something else. The copyrighted work is not the target of your commentary but rather an illustrative tool to make a point about a third object or point. An example of this would be Al Gore’s use of a clip from the animated TV series Futurama in his documentary, An Inconvenient Truth, in order to demonstrate how society views the possible solutions to global warming. The fact that the use may be entertaining or used for a commercial purpose does not detract from the conclusion that this is fair use. The user is essentially creating a new work through his use of an existing copyrighted work.

While this is still within the realm of fair use, it is highly advisable to attribute the source of the work and to avoid using too much of the same work in the commentary. Additionally, it is important that you are not using this material simply because you want to avoid the cost or hassle of creating your own version of the work.

3. Have you incidentally captured some copyrighted media content while filming or photographing something unrelated?

This situation arises frequently when shooting “out in the wild.” There are often copyrighted works in the background that are otherwise impossible or undesirable to eliminate from your film or photo as this would spoil the “realism” of your creation. Examples include music playing on a radio, artwork on a wall, or a TV show playing in the background. These incidentally captured copyrighted works can usually be left untouched as long as they were truly “incidental” captures.

Again, where possible the incidentally captured works should be attributed to their source. Additionally, you shouldn’t attempt to rely on fair use if you have captured the copyrighted works with the intention to exploit them in some way in your work. Thus, the copyrighted works should not appear central to the scene. For example, a filmmaker who chooses to shoot a scene in front of a house because of the artwork on the door would not be able to rely on a fair use defense if the copyright owner sued. This is because the door itself was central to the scene, rather than merely incidental.

4. Are you using copyrighted material in a historical sequence?

This situation arises when you are trying to place something in historical context. Usually the best way to do so is to use words, images, or clips that are as close as you can to the primary source. Most of the time these materials are available under license, but what about the times when they aren’t or where the license terms are too onerous for your means?

The fair use doctrine allows you to use these materials without obtaining the consent of the copyright holder provided you follow some basic best practices in doing so. First, as with the previous two scenarios, you should properly attribute the source of the material even if you are not obtaining a license to use their work. Second, your use of the material should be no more than is absolutely necessary to get your point across, and under no circumstance should it be the central focus of your piece. Finally, you should establish some record that shows that you have made a reasonable attempt to obtain a license to use the work but for some reason were unable to do so.

We realize that this may be a somewhat long and confusing introduction to the doctrine of fair use. Like much of copyright law the answer to your particular question or situation will likely be “it depends.” We recommend that anyone concerned about whether they can claim fair use of a particular copyrighted work consult an attorney on the matter.

For a more audiovisual introduction to Fair Use, check out this video, which just so happens to be a perfect example of the Fair Use of some rather famous animation works.

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Photo Credit:  Phillip Harder