Fair Use: An Introduction to This Misunderstood Doctrine

Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.

So far, we’ve looked at copyright and ways to legally work within a copyright holder’s rights. Now, we’re going to turn our attention to one of the most confusing aspects of copyright law: the Fair Use doctrine. Under Fair Use, copyrighted material may be used under certain conditions for a specific set of reasons without requiring the copyright holder’s permission or procuring a license.

To be eligible for Fair Use protection, copyrighted material must be copied verbatim, and only used for criticism, comment, news reporting, teaching, or research. In each case, the use must be limited and transformative. For example, creating a parody or satire where the purpose is criticizing or commenting on a given situation can potentially be protected by Fair Use as it transforms the work by providing commentary. Using someone’s music in a YouTube video cannot because it in no way transforms the music, nor is it a limited use of the music.

If the material is being used in one of the acceptable ways, then other considerations come into play. The nature of the copyrighted work and the purpose of the copying material are taken into consideration. The amount of the original work used in the copying work is considered. And the effect of the existence of the copying work on the marketability of the original piece is looked at, including the author’s right of first publishing in cases where the copied work is unpublished.

The next few posts will be looking more closely at these considerations, but there are some outstanding resources on Fair Use that you ought to give a look if you are a remixer looking to stay on copyright holders’ good sides.

And finally, BYU has a Fair Use checklist that does a pretty fair job of helping those incorporating copyrighted materials into their own work sort out what is most likely Fair Use and what isn’t. Even if you’re feeling pretty confident, take advantage of this great resource!

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