Copyright Fair Use Doctrine

Copyright Fair Use DoctrineCopyright Fair Use Doctrine

The Fair Use Doctrine of U.S. Copyright law is codified in U.S. Code Title 17, Section 107 of the 1976 Copyright Act.

It permits the use of copyrighted works without copyright infringement in certain cases and situations where no advance permission from the copyright owner of the work is required.

Usually, copyright law Section 106 includes the exclusive rights to copy a work, to make a derivative work, to distribute copies to the public, to perform a work in public, to display a work in public, and to broadcast (stream) sound recordings by digital audio transmission. These are the rights included when you see the familiar “All Rights Reserved” copyright notice.

But, Section 106 also states that these rights are subject to the limitations and exceptions described in Sections 107 through 122, which include Fair Use rights.

Distribution includes selling, renting, lending, leasing, licensing, giving, and sharing.

1.0 U.S. Constitution Patent and Copyright Clause

Article I, Section 8, Clause 8 [The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

2.0 Copyright Protections

Copyright Basics Circular 1Copyright exists automatically in an original work of authorship once it is fixed in a tangible medium. A copyright notice was required for works published in the United States before March 1, 1989. It is no longer required but is recommended as reasonable notice.

Copyright notice consists of the copyright symbol © or the word Copyright, the year of first publication, and the name of the copyright owner.

For example: © Copyright 2022 Company Name.  All rights reserved.

Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

Usually, copyright law requires a user to get permission or a license from the creator of the protected work. But, the Fair Use Doctrine permits the use of copyrighted work without permission if several conditions are met, as listed in federal copyright law and interpreted by the courts.

3.0 Fair Use Factors

Copyright Fair Use yellow ovalThe Fair Use law considers four factors: amount, purpose, nature, and effect. Each factor is analyzed and weighed separately on a case-by-case factual basis by a federal court.  A review of court cases indicates that amount, purpose, and effect are often given more weight than nature.

Fair Use is more acceptable for use in teaching, education, research, scholarship, criticism, commenting, news reporting, comedy, or parody, that serves the public interest, not when used for commercial profit to the detriment of the creator.

3.1 Amount and Substantiality of Content Used

Copyright Fair Use AmountNormally, only a small amount or proportion of the work may be used, such as a brief excerpt or quotation from a text or a sample audio-video clip, but not the entire work.

But, substantiality is also an important consideration. If the small portion used is the heart, most important, primary, or most creative part of the whole creative work, it has more importance or value than an unsubstantial less important secondary part.

3.2 Purpose and Character of Content Used

Copyright Fair Use PurposeThere should be a new purpose or new function for the derivative work, adding transformative value with your own creativity to substantially transform it into a new, different, or further use, repurpose, or a different context, character, or aesthetic design.

The phrase transformative value is found in many Fair Use copyright cases. Doing a copy and paste of creative work with no changes included does not transform it or add value. The new work should do more than simply serve as a substitute for the original work.

Transformation includes parody, criticism, different purpose, physical modification, creative use, or social benefit. The change should be substantial, not trivial.  Physical modification alone is the weakest argument since copyright includes the right to control the making of an obvious derivative work that required little or no creative effort.

The purpose of commercial use is undefined and too vague and has been declining in importance in court rulings, while transformative use has grown in importance.

3.2.1 Using Images for a Different Purpose

Images should not be used as decorations for an aesthetic purpose. Small low-resolution thumbnail images, serve a transformative use as a visual marker, or finding aid, with minimal fine details, compared to full-sized high-resolution images that reveal many fine details, and are primarily created for their pleasing aesthetic or emotional value.

A small relevant image that is used as a simple visual learning aid or reference to illustrate the substantial accompanying fact-based text is more likely to be Fair Use.

Courts have found that including images in publications is Fair Use, even if a licensing mechanism exists for the images, and the publications are commercial in nature.

A thumbnail image may also be used as a clickable link to the original creative work on another website, increasing its traffic and potential sales.

3.3 Nature of Content of the Original Work

Copyright Fair Use NatureFactual and technical works of nonfiction or based on facts are easier to claim for Fair Use because there is less creative work done by the preparer in organizing and presenting factual information.

Factual works, news events, and historic events are not very creative. Facts are not made up by creative thinking. Facts are gathered, organized, and reported.

Creative or fictional works such as novels, movies, songs, and artwork, are riskier to use under the Fair Use Doctrine because they are produced by investing time and effort in creativity and imagination, not reporting facts.

Publication is not necessary for copyright protection. Use of unpublished work is less likely to be considered Fair Use because the creator may wish to keep the work unpublished until a planned later release date.

3.4 Effect of Content on the Original Market

Copyright Fair Use EffectThe new work should have no significant effect on the current or future market value or sales of the existing work. If the new work is in market competition with the original work, it might divert, detract, or undermine sales revenue to the creator.

But, if the new work is only a small sample or of lower quality than the original work, it may increase awareness, demand, and sales of the original work by including an attribution, citation, mention, recommendation, or web link, benefitting the creator.

Nonprofit or not-for-profit use with no monetization of the new work, including accepting tips, is a more Fair Use than for-profit use.

Fair Use is more likely when the work is out of print, no longer available, no license is available for your type of use, or the copyright owner cannot be identified to seek permission.  Fair Use is less likely when there is a license or permission available but you are trying to avoid paying the license fee.

4.0 Williams & Wilkins v. United States, Supreme Court Fair Use Case, 1973

scale of justiceFair Use is not always obvious to predict or determine. In 1973, in the Williams & Wilkins Company case, the Supreme Court ruled that copying and distributing entire medical journal articles for free to nonprofit government research libraries was a Fair Use under the Copyright Act of 1909.

The benefit to the public interest outweighed the minor financial harm caused to the medical publisher due to a decline in sales of its medical journal. Evidence presented demonstrated that it would cause serious harm to medical and scientific research if the practice was held unlawful. The case was dismissed.

Copyright is primarily for the benefit of the public, not primarily for the benefit of the creator. The court weighs the greater fundamental purpose of copyright to promote the progress of art, science, and industry for public benefit against the copyright owner’s right to reap financial benefit from the creative work.

5.0 Public Domain

Content that is in the Public Domain is not copyrighted and may be used for any purpose without requesting permission from the creator. Generally, works created on or after January 1, 1978, automatically enter the public domain 70 years after all its authors have died.

Under Section 105, content produced by U.S. government employees on the job is also public domain. State and local government materials do not fall under this rule and may be copyrighted.

The law prohibits the copyright of facts of all kinds, even if the facts were found by skill and effort.

6.0 Requesting Permission from the Copyright Owner

permission granted not requiredMany creators are readily willing to grant permission to use their copyrighted work upon written request if there is no negative effect. They may simply require a citation or attribution giving credit to the copyright owner, with no licensing fee required.

Check the source website for instructions about requesting permission and a form. Keep your submitted request letter and the received reply in your records for evidence. If there is no form available, you can find a sample permission request letter on a university website.

Or, look for Creative Commons content that includes a license that allows use with proper attribution.

7.0 Attribution, Citation

Ethically, it is good practice and courtesy to acknowledge the original creator by including an attribution or citation but it is not required by the Fair Use law.  Giving attribution alone does not create a shield from copyright infringement.

Citations also validate your work by showing the location, quality, and expertise of the sources used in your research. They let readers know where they can do further reading or research to form their own opinions and evaluate your contribution to the subject matter.

You can use a free online citation generator tool that follows the Chicago Manual of Style (CMOS) guidelines to create citations in the proper format quickly from the data you enter. Citations may be added as footnotes, endnotes, or in a bibliography.

8.0 Fair Use Court Decisions

scale of justiceThe U.S. Copyright Office website includes a searchable Fair Use Index database with a broad selection of judicial decisions, not all cases, for legal research and learning.  My analysis of the listed Fair Use cases at the time of this writing showed the following results (see table), which are not necessarily typical results.

It appears that either party in a Fair Use dispute has a 40% to 60% chance of winning a federal court ruling in their favor. Minor disputes are settled outside of court with an informal email message, a formal cease and desist letter or a Digital Millenium Copyright Act (DMCA) takedown notice.

This avoids the time, expense, risk, and publicity when there is only a 50% chance of winning a copyright Fair Use claim. Taking a copyright case through a court trial may cost hundreds of thousands of dollars, with no guarantee of a favorable result.

U.S. Copyright Fair Use Index Cases Fair Use Found?
Case Category YES NO
painting/drawing/graphic 61% 39%
review/comment 58% 42%
education 55% 45%
textual work 51% 49%
photo 47% 53%
news 41% 59%
internet/digitization 39% 61%

9.0 Fair Use Guidelines are Not Law

Following Fair Use guidelines may reduce the risk of violating the copyright law, but it does not provide a guaranteed safe harbor because much of Fair Use is subject to interpretation on a case-by-case basis by federal courts. Even in court cases, the judges do not agree unanimously, and different court circuits weigh Fair Use factors differently.

It is important to act ethically, in good faith, follow best practices, include attributions and citations, display your claim of Fair Use when it is employed, and keep notes showing your rationale for invoking Fair Use.

Your business records can show that you used reasonable care to decide that your actions were based on reasonable grounds for relying on the Fair Use exception, not willful copyright infringement or fraudulent intent.

This evidence may be useful to deter litigation or to present in court if needed.  If you lose a case, your records may greatly reduce the statutory damages awarded by the court.  See the free Fair Use Checklist form from the Copyright Advisory Office at Columbia University Libraries to generate a PDF record of your evaluation.

Where applicable, access restrictions to certain content, including passwords and country blocking, may show evidence of good faith by reducing a large public audience to a small restricted audience.

10.0 Learn More About Copyright

school bus clip art black and whiteTo learn more, a good starting point is to read the U.S. Copyright Law to become familiar with the relevant sections for your situation.

Even a blogger, freelance writer, newsletter publisher, group forum moderator, or small business can do some reading without needing in-house legal counsel or a copyright compliance officer.

Copyright registration and transfer records created after December 31, 1977, can be searched online at the Copyright Office’s catalog.

The reference list below includes documents and videos about copyright law and Fair Use.

Disclaimer: I am not an attorney. This article and other articles describing Fair Use guidelines are not law and should not be used as legal advice or legal opinion.
Consult with an experienced copyright attorney for answers to questions and legal advice regarding copyright law and the Fair Use Doctrine.

Image Credits
All images were created by the author or are in the Public Domain.

Reference List
Items 1-6 are Government Publications in the Public Domain
1. Copyright Basics, Circular 1, revised 09/2021  https://www.copyright.gov/circs/circ01.pdf
2. How to Obtain Permission, Circular 16A, revised 03/2021  https://www.copyright.gov/circs/circ16a.pdf
3. Copyright Registration of Websites and Website Content, Circular 66, revised 03/2021  https://www.copyright.gov/circs/circ66.pdf
4. Copyright Law of the United States (Title 17)  https://www.copyright.gov/title17/
5. U.S. Copyright Office Fair Use Index, About Fair Use, U.S. Copyright Office  https://www.copyright.gov/fair-use/
6. Video, 3 min, Fair Use, 2019, U.S. Copyright Office  https://www.youtube.com/watch?v=IFhF_tHrj4s
7. Video, 40 min, Lecture 9.1 History of Fair Use, 2013, CopyrightX lecture series, Professor William Fisher, Harvard Law School  https://www.youtube.com/watch?v=KV8dj-7WA4o
8. Video, 44 min, Lecture 9.2 Fair Use Today, 2013, CopyrightX lecture series, Professor William Fisher, Harvard Law School  https://www.youtube.com/watch?v=Z9q6JA6f5Co
9. Video, 15 min, Lecture 9.3 Fair Use: Other Approaches, 2013, CopyrightX lecture series, Professor William Fisher, Harvard Law School  https://www.youtube.com/watch?v=RE-vfJAFt-k
10. Video, 78 min, ACRL Presents: The Fair Use Factors Their History and Application, 2016, Copyright Attorney Ana Enriquez  https://www.youtube.com/watch?v=kPEWcBVBOq4
11. Statement on the Fair Use of Images for Teaching, Research, and Study, Visual Resources Association (VRA), 2013  https://cmsimpact.org/wp-content/uploads/2016/01/vra_fairuse_statement.pdf

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