Fair Use is the legal exemption to copyright that is the most broad and also the most complicated, vague, and risky. Fair Use exists so that the strictness of copyright law doesn't stop people from using copyrighted materials for things that are expressly encouraged by the original wording of the Constitution ("promote the sciences and the useful arts.") Fair Use lets you do something that would otherwise be a prohibited infringement, as long as the courts think that the benefit to the public outweighs the harm to the copyright owner.
Fair Use is an affirmative defense. In other words, if you are taken to court over copyright infringement, you and your lawyer say, "Yes, Your Honor, I DID use that copyrighted material without a license! And I did it because it was a Fair Use!" (If what you did was commonly accepted as Fair Use under precedent, you won't get taken to court in the first place.) So Fair Use is risky if you're doing something brand new or in a gray area, but quite safe if you're following precedents.
But how is Fair Use decided? There are Four Factors, and each of them must be considered in relation to the others. The factors are:
- Purpose and Character of the use
Favorable: Education, scholarship, news reporting, criticism and commentary (including parody)
Unfavorable: The arts, commercial Uses
- Nature and Character of the work being used
Favorable: Non-fiction, non-dramatic, non-artistic, published
Unfavorable: Fiction, dramatic, artistic, unpublished
Published is more favorable because the law assumes that if you didn't publish something, maybe you didn't want it shared around.
Non-fiction is more favorable because, for better or worse, art and creativity aren't mentioned in the Constitution, while science, technology, commerce, and free speech are.
- Amount and Substantiality of the portion being used
Favorable: Minimal Amount, not the "heart and soul" of the work
Unfavorable: More than absolutely necessary, enough that it could stand on its own, the "heart and soul" of the work
There is no hard and fast amount or percentage that is "safe" (unless you're talking about electronic reserves.) It is all relative to the unique uses and value of the work in question.
- Effect on the Market for the original work or its potential derivative works
Favorable: No effect
Unfavorable: Any negative effect
Some things that are NOT Fair Uses
- Using a song as background music in a video
- It's really easy to grab the music as an MP3 and therefore it's a negative effect on the market
- Using an image as a background image or decorative motif in your work
- Same as above - people could just download that image, so it's a negative effect on the market
- Using material from one source to comment on, critique, or parody another thing
- It could be considered derogatory to the source material in a way that could have a negative effect on the market. Ironically, if you were parodying the source material, it might have an even worse effect on the market, but it's protected!
- Uploading or making copies of an article or chapter for all the students in a class
- Too much of the original work is being used, which means... negative effect on the market again!
- Making your own version of something, or a sequel, spin-off, or supplemental materials
- Negative effect on the market for potential derivative works.
- Translating or changing into another format (for example, from Flash to HTML5, or from .mobi to .pdf)
- Negative effect on the market for potential derivative works
As you can see, that fourth factor, market effect, is often the reason something isn't a Fair Use!
Transformative works are always Fair Uses because even though they are based up on someone else's work, or use someone else's work as an ingredient, they are so unique and distinctive in their nature and purpose that they could never be mistaken for the original or used as a substitution for the original.
- Collages and musical mash-ups are Fair Uses because they are Transformative Works.
- Movie reviews that use clips from the movie and other pieces of media are Fair Uses because they're Transformative Works.
- A coffee table book of Grateful Dead posters was considered a Transformative Work and a Fair Use because the artist created the posters to advertise for the band, and the book's author used the posters to illustrate an art history topic.
- A cosmetics advertisement being analyzed in a scholarly article about beauty standards is Transformative because the original purpose is to sell makeup, and the new purpose is to comment on a social phenomenon.
Is your use Transformative? Ask yourself these questions:
- Is my work so different that it can't be mistaken for the original? GOOD.
- Is my work so different that it can't be considered competition for the original or its potential derivative works? GOOD.
- Does my work have a different purpose from the original? GOOD