What is… fair use?

October 31, 2016 1:10 pm

Somewhere between copyright, which protects writers’ and artists’ rights to their works, and public domain, which allows free use of non-copyrighted material, lies a hard-to-define – but important – concept called ‘fair use’.

photo credit: Tim Gouw via Unsplash (licence)

photo credit: Tim Gouw via Unsplash (licence)

In the US, fair use is defined by the government’s Copyright Office as “a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances”. (The concept is known as ‘fair dealing’ in the UK.) What that means is that, depending on what you’re using it for, it’s OK to include a limited amount of someone else’s copyrighted material in your own creation.

Two parts of that description are key: ‘what you’re using it for’ and ‘a limited amount’.

In general, quoting a part of someone else’s copyrighted work will be considered fair use in the US if it’s for non-profit, educational purposes or done in a ‘transformative’ way… that is, you’re citing another’s work to add new contexts or insights of your own. Your quotation will also likely be deemed fair use if you’re using just a small portion of another’s creation, and not affecting the potential market for or value of the original piece.

If all of that seems a little vague, it’s meant to be. As the Stanford University Libraries’ Copyright & Fair Use site explains: “There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.”

According to the Stanford site, most examples of fair use fall into one of two categories: commentary/criticism or parody. The first category, it says, would include uses like “quoting a few lines from a Bob Dylan song in a music review” or “summarising and quoting from a medical article on prostate cancer in a news report”. For the second category, think of parody works like Weird Al Yankovic’s ‘Canadian Idiot’, his musical take on Green Day’s ‘American Idiot’, or the Simpsons version of Andy Warhol’s famous ‘Marilyn Diptych’.

It’s worth noting at this point that, contrary to what some people might believe, there is no specific number of words given to define fair use of written content. While US law is more likely to look kindly on the quotation of a few dozen copyrighted words over the quotation of several thousand, the Copyright Office states that “some courts have found use of an entire work to be fair under certain circumstances”.

Defining fair use in court, in other words, is a bit like defining art: judges know it when they see it.

It’s the same in the UK, where the government’s Intellectual Property Office has this to say: “There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case.”

However, British law starts its determination from a slightly different position than do courts in the US, and is a bit more restrictive. It says fair dealing applies primarily for non-commercial research or private study, although it also allows some copyright exceptions for reviews, reporting, teaching and parody. While it doesn’t require people to seek the original creator’s permission, it does expect anyone quoting copyrighted content to “sufficiently acknowledge” the original creator’s work. As in the US, UK law also takes into account whether the use of copyrighted materials could affect the market for the original work. Where the US might allow fair use even in the case of unpublished works, however, the UK does not.

To see what types of uses the courts have considered fair or not, see some of the cases that have been decided in the US and the UK.

Tagged with