Only Three Fairs in the World

Jeff likes to say, “There are only three “fairs” in the world: The county fair, the state fair, and the World’s Fair.”  However clever that is, in copyright law, we also have fair use.

I’ve been getting asked a lot of forms of, “If I do X, am I doing something wrong with someone else’s copyright?”  Most of the time, the answer is, if you are using something without the creator’s permission, yes, you are infringing.  But, I said “most of the time,” which means not all of the time.  When aren’t you doing something wrong if you are using someone else’s copyrighted creation?  One common answer is when it is “fair use.”  However, “fair use” is a really big concept with very few times when it actually applies.  It is a common defense, but not a common winner.  But it isn’t always a loser, so let’s explore a little bit of what fair use is and what it is not.

The fancy legal language says, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.”  Uh-huh.  So what does that mean?

First, it is a defense.  That means that someone doing something that is judged to be fair use is doing something that would be considered infringing, but because the action is determined to be fair use, it is not.  That means you are playing with fire a little bit.  You know you are using someone else’s work without their permission.  You just think you have a reason not to have to get their permission.  This sounds like an argument that you wouldn’t want your high-schooler to present to you.  “I know it would normally be wrong to do what I did and not to ask your permission, but I thought that this was an exception.”  Therefore, you probably want to think it through a bit rather than just claiming fair use on a whim.

In determining whether the use made of a work in any particular case is a fair use, Section 107 of the Copyright Act lets you know that “the factors to be considered shall include”:

  1. the purpose and character of the use, including whether such use is of a 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; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

None of these are clear-cut, stand alone things.  They are each looked at independently and in conjunction with each other.  In other words, just because you “only used a teeny-tiny bit,” it doesn’t mean you are in the clear.  I also wouldn’t want to stand only on the argument that “I didn’t make any money on it.”  That being said, sometimes those arguments go a long, long way.

To determine whether a particular use is a fair use, you have to balance each of the factors.  Ultimately, the only way to know for sure is to have a judge tell you, and judges have a great deal of freedom putting weight on different facts when making their determination about fair use.  Each case is very fact dependent, but, yes, I’ll discuss each factor in more detail in later posts.  So get ready for Faireys, Apologies for Parties, and a Pretty Woman.