Better Understanding Fair Use

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Recently, PlagiarismToday attempted to explain “5 Copyright Terms” that are, they felt, being used incorrectly. One of those terms was “Fair Use” – but unfortunately, their attempted explanation fell far short of correct.

They claim that Fair Use is “infringement of a work where the court has determined that the infringer is not liable”.

That’s not true. Fair Use is a lawful use of copyright. (See Lenz v. Universal Music Corp, 572 F. Supp. 2d 1150 (N.D. Ca. 2008)). As the US Copyright Office says, Fair Use is a “limitation” on the rights of the owner of copyright, and thus others who have not been authorized by the owner can reproduce the work; courts have held that this reproduction right includes the right to create transformative works.

While, as the Copyright Office says, the “distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined…” US courts have ruled in numerous cases on what those parameters are. The entire concept of precedent in US law means that “principles established in earlier cases” can be used to decide new cases with similar facts and issues. You don’t have to be the Supreme Court to see that Fair Use can apply in numerous situations.

PlagiarismToday misleadingly suggests that instead of saying something is Fair Use, creators should avoid saying anything, or use the terms “attributed” or “noncommercial” – even though those don’t determine whether something is Fair Use. A work that’s attributed or noncommercial can still infringe on another’s copyright, and an unattributed and commercial use can be fair. The question isn’t attribution – it’s whether permission is required and if so, obtained. Fair Use exists where permission isn’t necessary, so whether you ask for it or not is irrelevant. This isn’t to say that creators shouldn’t identify their works as attributed or noncommercial–only that those notes won’t make a use fair, and skipping them won’t make a use infringing.

Noting that a work is, or even might be, Fair Use also doesn’t really have an impact on a court’s determining whether it is or isn’t. But that isn’t the point, because a court isn’t the only audience for a work. The internet isn’t a court of law; it is a court of public opinion. Including an author’s note or artist’s comment that a fic or painting or vid or film is Fair Use lets other people know what Fair Use is. As the US Copyright Office says, it can happen where “the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.”

Sounds like fannish creativity, doesn’t it?

As we say in the OTW FAQ: Fair use is the right to make some use of copyrighted material without getting permission or paying. It is a basic limit on copyright law that protects free expression. “Fair use” is an American phrase, although all copyright laws have some limits that keep copyright from being private censorship.

Fair use favors uses that (1) are noncommercial and not sold for a profit; (2) are transformative, adding new meaning and messages to the original; (3) are limited, not copying the entirety of the original; and (4) do not substitute for the original work. None of these factors is absolutely necessary for fair use, but they all help, and we believe that fanworks like those available through the AO3 easily qualify as fair uses based on all these factors.

Legal Advocacy, Spotlight
  1. Pearl commented:

    Can you research and post something about some new bill named “CISPA”?

    • Claudia Rebaza commented:

      The OTW has written about CISPA before. The EFF has a good look on its current status. The general issue of cybersecurity, while an important matter in terms of consumers’ digital rights, is not something the OTW will be as up-to-date on as some of our advocacy partners as this isn’t the focus of our legal advocacy project, but we encourage fans to stay informed using other reliable sources.