Copyright – What is “Fair Use”?

Copyright law makes it illegal to copy, display, publish, perform or create derivative works of copyrighted material without the permission of the owner. Most of the content on the Internet is covered by copyright law (including text, images, music). Copyright law does not protect the idea or the facts; it only protects the way an author expressed him/herself.

What is the “Fair Use” Doctrine?
The rights of the copyright owner are limited by the “fair use” doctrine, which allows reproduction of copyright protected materials under certain circumstances.

Unfortunately, there are no clear-cut rules for what is “fair use.” There are no “safe harbors” such as specific number of words or percentage of content.

Rather, there are factors that are used to determine “fair use”:

(1) Purpose and character of the use.
Is the use commercial or non-profit? Commercial use is less likely to be “fair use.”
“Fair use” is more likely when the use is to illustrate, comment, criticize, or educate.

(2) Nature of the copyright work.
Is the work factual or fictional? Factual use is more likely to be “fair use.”

(3) Amount and substantiality of the portion of the work used.
The courts have found that using 300 words of a 30,000 manuscript of President Ford’s memoirs was the “heart of the book” and contributed to the conclusion that it was not “fair use.”

(4) Effect on the potential market value of the copyrighted work.
Will your use diminish the potential revenue for the copyright owner? If there’s financial harm (loss of revenue to the copyright owner), then it’s probably not “fair use.”

No clear rules. Suggested guidelines.

While there are no firm rules, the following guidelines may help in evaluating whether your use is within the “fair use” doctrine.

  1. Quote accurately and briefly.(Word-count guidelines - such as 250 words or less - are not a safe harbor).
  2. Commercial use is less likely to be “fair use.”
  3. Fictional works receive more protection than factual works.
  4. “Fair use” includes activities such as criticism, comment, news reporting, teaching and research.

Uncertain? Get Permission.
Getting permission of the copyright owner can be difficult and costly. Sometimes it is difficult to identify the owner, which can be the photographer or the publisher such as for a magazine or newspaper. There are copyright “clearing houses” online. For example, http://www.gettyimages.com, makes it easy to obtain the rights to use images and photographs and to determine what is royalty-free or what the royalty payment is. Other sources include: Copyright Clearance Center, Inc., http://www.copyright.com and Music Library Association (MLA) Clearinghouse, http://www.musiclibraryassoc.org.

In conclusion, if you’re using someone else’s work, carefully consider whether your use makes sense under the “fair use” doctrine. Be careful to quote accurately, give credit and add value by comparing, criticizing or commenting on the work. If your use is extensive, get permission, in writing.


Jean D. Sifleet
Attorney & CPA
120 South Meadow Road
Clinton, MA 01510

t. 978-368-6104
f. 978-368-6105
jean@smartfast.com

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Jean Sifleet, business attorney, CPA and three-time entrepreneur, is pleased to announce the release of her new book, Advantage “IP”: Profit from Your Great Ideas. Visit the Smartfast Bookstore for details, and to order the book.

Information provided on this website is intended for a general overview and
should not be construed as legal advice for a particular situation.