Five Myths You Need to Know About Fair Use

The following guest post was written by Dave Owens, a 2010 graduate of the University of San Francisco School of Law.

Copyright law gives an author exclusive right to his or her work. An author, however, is limited from enforcing this right if the use is a fair use. Most people have heard of fair use, but don’t understand how it is applied in real life, nor the major myths and misunderstandings about how it affects them.

What is Fair Use?

Fair use is a common law doctrine that was codified in the Copyright Act of 1976.  It is intended to protect “purposes such as criticism, comment, news reporting, teaching, scholarship, or research.”

The Copyright Act states that in determining whether a use is “fair use,” courts shall consider:

  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;
  4. the effect of the use upon the potential market for or value of the copyrighted work.

This is an affirmative defense, which means that you only get to raise it when you get sued. In other words, it’s your right to spend a lot of money on litigation.

The factors require subjective interpretation on a case-by-case basis, which means that judges have different theories about what is classified as a fair use. This uncertainly has contributed to myths about fair use.

Find Out the Five Myths About Fair Use

1. “It’s a Fair Use Because it’s Fair”

A media company has made millions and millions of dollars off a work and you think it seems fair that you should be able to use it without permission. You believe the economic effect is miniscule in the grand scheme of things. This is not what fair use means. Courts review the factors established in the Copyright Act, not whether or not it seems fair.

2. “You Can Use Less Than 30 Seconds”

This one is widely believed, but completely wrong. The belief likely stems from the fact that broadcast networks often purchase a blanket license from ASCAP/BMI to use copyrighted works for less than 30 seconds. The license gives the network permission to use the copyrighted work. This is permission you have not received.

Courts do consider the amount and substantiality used. But it is only one factor and likely not enough on its own for you to prevail in a lawsuit. Courts have rejected a de minimis defense, meaning that the use is so small or minimal in difference that it does not matter. In 2005 the Sixth Circuit found that sampling a two-second guitar chord was an infringement.

3. “The Artist Won’t Care”

You may think that a filmmaker or musician would encourage your creativity instead of suing. Even if this is true, a filmmaker or musician often does not own the rights to the work.

An artist’s contributions are usually a “work made for hire,” in which they forfeit their rights to a media company before the work begins. Or they later assign their rights to the media company to get a distribution deal.

The simple fact is that the company, and frankly even the artist, will expect to be paid.

4. “But I’m Not Making Money”

This is a common belief ― more so now in the digital age when people can post anything online. People believe that they cannot be violating copyright law if they’re not making money. There is no such rule.

A copyright owner has the exclusive rights to a work, which means they can prevent others from using it, regardless of whether the individual is profiting. In the fair use analysis, courts do consider whether or not the work was commercial, but the fact that the use was noncommercial is not the sole factor.

5. “It’s Okay As Long As I Give the Artist Credit”

People think that crediting the copyright holder will keep them from being sued for copyright infringement. This is wrong. Crediting the copyright holder is not a defense to infringement.

Copyright law is about permission, not accreditation. If anything, it confirms to the copyright holder that you used their intellectual property.

Dave Owens is a 2010 graduate of the University of San Francisco School of Law.  He can be reached at dao1282@gmail.com.  The information contained in this blog post is provided only as general information for education purposes.

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