© is the copyright symbol in a copyright notice

© is the copyright symbol in a copyright notice (Photo credit: Wikipedia)

“Fair Use” is the theme of the day in the Electronic Frontier Foundation’s (EFF) celebration of its “Copyright Week.” The EFF site offers little on its views on Fair Use other than to say:


For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.


That’s a statement that’s tough to disagree with. I think everyone agrees with the assertion that the purpose of copyright is to promote creativity and innovation. The EFF’s view offers little in the way of guidance about Fair Use, so let’s spell it out here.


Fair Use is a limitation to the laws of copyright that allow for the limited use and reproduction of copyrighted material without the content owner’s permission. The difficult thing about Fair Use is that its meaning is not spelled out explicitly in the Copyright Code. The Fair Use exception has evolved over time and even the U.S. Copyright Office itself expresses its own uncertainty:


The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. 


The law does offer these as examples of Fair Use  “use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research….”


The Copyright Office offers a few more specific examples that have proven useful over the years:


The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”


The law also presents four factors that must be considered when evaluating a possible Fair Use exception to copyright:


  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

This is a long way of saying that there are really no hard and fast rules about Fair Use. It’s all on an ad hoc basis and it’s one of that things that to paraphrase the late Supreme Court Justice Potter Stewart’s view on pornography, “You know it when you see it.”


There really aren’t any loopholes here. The purpose of Fair Use is to allow for the use of copyrighted material in a new and different context. And that context means a lot and is subject to change. For example, if a television show is running on a screen in the background of a non-profit documentary, you’re probably fine. If the same television show is running on a screen in the background in your $100 million Hollywood blockbuster, you’re probably not OK.


In short, context is everything when it comes to Fair Use and there really are only opinions when it comes to pre-judging claims of validity. Should you go with Fair Use or not? The basis might be termed an “informed gut decision.” If it seems like you’re getting away with something, you’re probably not covered.




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