Don Jones

Tech | Career | Musings

In my work, I get a lot of folks asking about US copyright law’s “Fair Use” doctrine. It’s massively misunderstood. Although I’m no lawyer, allow me to clear up a few misconceptions.

The default state, in copyright law, is simple: you cannot copy someone else’s stuff. Period. Simply because something is publicly available – e.g., on the Internet – does not mean the author has waived their copyright and placed their work into the public domain. 

“Fair use” often gets invoked by legal amateurs in the context of, “well, I’m just taking this one little photo and using it to punch up a PowerPoint slide – I’m not making money on it, so that must be fair use.” It’s not.

Generally speaking, “fair use” means you are using copyright material so that you can comment upon, criticize, or parody that material. If you’re using a lolcatz photo as part of a presentation commenting upon lolcatz photos, then it is perhaps Fair Use. If you’re simply using the cat photo to punch up an otherwise unrelated PowerPoint slide, this is not Fair Use.

Just because you’re not making money on something does not mean you’re automatically covered by Fair Use; indeed, using someone’s copyrighted work impinges on their copy rights, whether you’re charging or not. Nor does copyright law set aside special exemptions for students, excepting when students are commenting upon, criticizing, or parodying the material they are copying.

Fair Use would not let you snag a photo of Brad Pitt from the Internet to use in an article about Brad Pitt. You would be violating the photographer’s copyright. Fair Use might cover you snagging a photo of Brad so that you could comment upon the photo itself, perhaps critiquing its quality, composition, or lighting. Fair Use might especially apply if you were using only a portion of the photo and commenting upon that, such as some detail of it. Fair Use does tend to recognize that using an entire work is not Fair Use.

Fair Use was intended to protect people who were examining and commenting upon a work from being sued, but only insofar as their use of the copyrighted work didn’t impinge on the creator’s right to control the reproduction of their work. For example, you couldn’t include an entire copy of 50 Shades of Grey in a commentary on the book, because you’d be hurting the author’s right to generate revenue on the book – whether you yourself made any money or not. Fair Use might certainly let you quote brief passages from the book, but that’s all.

Noncommercial uses tend to be more likely to be seen as Fair Use, but only when they’re complying with the points I’ve laid out to this point. A commercial application of Fair Use needs to be even more careful to strictly abide by the spirit of the law.

The official government word on the subject is at https://www.copyright.gov/fair-use/more-info.html.

Categories: Life

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