What Makes “Fair Use” Fair?

The Internet makes borrowing content easier than ever. You can copy and paste just about anything you read or see into your own website. But you need to be careful about how you use someone else’s copyrighted material, or you could end up in court.

The safest route is to ask for written permission from the author or artist. And you should always attribute the work.

The legal concept of “fair use” enables you to repurpose copyrighted material to comment on, criticize or parody the original without permission—but you need to understand the rules. Here’s an overview, which I’ve based on an excellent, detailed explanation from Stanford University Libraries on Copyright & Fair Use:

How and Why Are You Using Someone Else’s Work?
At the heart of any fair use determination is whether you’re lifting someone’s copyrighted work in its entirety (NOT okay) or transforming the material in some way—reinterpreting the work, giving it new meaning or adding value to the original through new insights, information or aesthetic embellishment (MAYBE okay).

Here’s where the subject gets murky. What constitutes a fair use transformation of someone else’s original work is subject to much legal dispute. Using excerpts of copyrighted works for research, scholarship or educational purposes—to explain a point, as part of a critique or a review—is usually considered transformative and within bounds of fair use.

Courts are most lenient regarding parody, because reproducing an original work is essential to its ridicule. Think of all the American Gothic parodies you’ve ever seen—take-offs on that famous Grant Wood painting of the dour-faced farmer holding a pitchfork next to his dour-faced wife.

What Kind of Work Are You Using?
If you’re copying from a non-fiction work, chances are you have more fair-use wiggle room, because you’re spreading facts and information that benefit others. The boundaries are tighter if you copy from works of fiction, derived purely from the creator’s imagination.

Beware of copying from unpublished works; you may be violating the author’s right to determine when the work first appears in public.

See links below for guidelines on fair use for visual images and videos.

How Much and What Part Are You Using?
You might conclude from all this that the less you use, the safer you are. While that may be a good rule of thumb in general, if you copy what’s considered the heart of the work, the most memorable essence, without permission—even one line—you could get sued. In other words, don’t lift the phrase “Go ahead, make my day!” from Dirty Harry for your next ad campaign without permission. Parody is the often the only exception.

Does Your Use Deprive the Creator of Current or Potential Income?
Making money from your transformation of someone else’s copyrighted work, even if it’s something the author would never have thought of doing or didn’t have the ability to do, can also land you in court. Before you proceed with selling your adapted creation, get some good legal advice. Once again, there’s more legal leeway with parodies.

What If You Acknowledge Your Source? Isn’t That Good Enough to Protect Yourself?
Sorry, not so. It may help your case if you end up in a fair use dispute with the work’s creator (assuming you’ve met the above criteria), but it won’t protect you from being sued for copyright infringement.

What About a Disclaimer?
Even if you state in a prominent place that your work is an unauthorized use of copyrighted material—say, the unofficial guide to Beatles trivia—the disclaimer itself is no guarantee that you (a) have met fair use standards and (b) couldn’t be successfully sued for copyright infringement.

What About Fair Use of Visual Images?
This is a hot issue right now, given all the controversy over sharing images on Pinterest. In one case of a search engine that placed and indexed thumbnail images of copyrighted artwork on its website—images that were significantly smaller and of poorer quality than the originals—the court ruled that this practice would not undermine the artists’ ability to sell or license the original, full-size images. So, thumbnails seem to be okay, so far, but stay tuned for future refinements of the law as visual image networking sites come under closer scrutiny by copyright experts.

You can learn more about the specifics and gray areas of fair use and copyright infringement from these online resources:

Stanford Copyright and Fair Use Center Stanford University

Copyright Information Center Cornell University

Code of Best Practices in Fair Use for Online Video Center for Social Media, American University

Copyright Fair Use and How It Works for Online Images Social Media Examiner

Marketing consultant Evelyn Herwitz loves to help you tell a great story about your good work. She specializes in search-optimized web content that positions you as an approachable expert in your field and helps you grow your business. Contact Evelyn for a free half-hour consult for new clients.


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