What Is Fair Use Under the Copyright Law?

The most common and powerful defense to copyright infringement is fair use. It is a doctrine that allows the use of copyrighted content (or its parts) without special permission from the owner in special circumstances. 

This article will help you understand better how copyright works regarding fair use. If you want to learn more, check out our Learning Center articles on how to copyright your work, how to distinguish between copyright notices and claims, and how long copyright lasts.      

Fair Use Factors

The fair use doctrine has a long history in common law, and it was formalized in statutory law after the U.S. Congress passed the Copyright Act in 1976. Its main goal is to protect the freedom of speech, guaranteed by the First Amendment, and safeguard creativity from being stifled by copyright laws, including the Digital Millennium Copyright Act (DMCA) of 1998.


Application of the fair use doctrine in practice is not so precise, and it’s judged on a case-by-case basis. The court will determine whether someone infringed copyrights or qualifies for the defense under fair use based on these four factors:

  1. The purpose and character of the use
  2. The nature of the original work
  3. The amount and substantiality of the used part 
  4. The consequences for the copyrighted work’s value

Is It Copyright Infringement if It Is Used for Commercial Purposes?

The answer to this question relates to the first factor of the fair use doctrine. The defense based on fair use in cases of copyright infringement can be invoked if the original content was used in a noncommercial manner. The instances that qualify include:

  • Scholarship
  • Research 
  • Education
  • Transformative use (creating new content based on copyrighted work)
  • Commentary, parody, or criticism

What qualifies as transformative use may be difficult to determine, as shown in the Warner Bros. Entertainment, Inc. v. RDR Books case. It turned out that creating a Harry Potter encyclopedia that uses significantly copyrighted material verbatim doesn’t fall under fair use. 

While there might be certain exceptions, the general rule is that any permissionless use of copyrighted content for commercial purposes counts as copyright infringement, even in cases of educational or scientific content.     

What Kind of Work Is Easier To Copy Under Fair Use?

The nature of the copyrighted material is also important to determine if someone is breaking the rules when copying content. Fair use applies more easily to factual than fictional work. 

It is also important whether the original work has been published already or not. Copying from unpublished content leaves less leeway for fair use because it infringes on the author’s right to supervise the first public appearance of their work. 

What Amount of Copyright Material Can Be Used Under Fair Use?

The general rule of thumb regarding the used amount is—the less, the better. Like with other fair use factors, this rule is relative. While courts relied heavily on the numbers in the past and allowed using up to ten percent of the original content under fair use, this method received loud criticism. 

The more important question is how essential the used part is. Copying the opening guitar riffs and the accompanying lyrics originally used in a famous song won’t qualify as fair use even though it is a small part of the whole song, while parodists can get away with much more. 

Can You Profit off of Fair Use Under Copyright Laws?

If the new content that copies or draws heavily from copyrighted work deprives the original author of potential income, invoking fair use won’t do much. When the photographer Art Rogers sued Jeff Koons, the famous artist, for using his photograph to create and sell sculptures, the court sided with Rogers stating that the market for Koons’ work was prejudiced.

Examples of Fair Use

If you need more examples of what qualifies as fair use across different media, check out the table below:

Medium Example Case Fair Use

Text

A biographer of Richard Wright using six unpublished letters and ten unpublished journal entries by Wright

(Wright v. Warner Books, Inc.

Qualifies
A book Welcome to Twin Peaks: A Complete Guide to Who’s Who and What’s What based on the TV show Twin Peaks

(Twin Peaks v. Publications Int’l, Ltd.)

Doesn’t qualify

Visual Arts

Reproducing Grateful Dead concert posters within a book

(Bill Graham Archives v. Dorling Kindersley Ltd.)

Qualifies
A news program using one minute and 15 seconds of Charlie Chaplin’s film to report on his death

(Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc.)

Doesn’t qualify

Internet

An online political forum post including a five-sentence quote from a newspaper article, linking back to the newspaper’s website

(Righthaven LLC v. Democratic Underground)

Qualifies

Posting Church of Scientology’s publications in full online

(Religious Technology Center v. Lerma)

Doesn’t qualify

Music

Using 15 seconds of the political opponent’s campaign song in a political ad  

(Keep Thomson Governor Comm. v. Citizens for Gallen Comm.)

Qualifies
Downloading 30 songs via peer-to-peer file-sharing software to try them 

(BMG Music v. Gonzalez)

Doesn’t qualify

Tips To Avoid Copyright Infringement

The fine line between fair use and copyright infringement is not clearly defined. Here are some tips on how to avoid copyright infringement in the most common situations:

  • Using trademarked logos—Stick to using the logo only to represent and identify the company that owns it, and you should be fine
  • Using quotations—Make sure to state your sources and use proper references
  • Using visual content from the internet—Check the photo credits and permissions, or look for items with a Creative Commons license
  • Using infographics—Link to the author’s website or obtain explicit permission

You should know that referencing or acknowledging the author in a disclaimer doesn’t mean you have permission to use the content. Many people believe that it’s fine to just include the name of the author under copied work, but without gaining permission, you could still face legal claims. 

Creating DMCA Notices Is Easy With DoNotPay

If you notice that someone else copied your original content that falls under the DMCA protection and it cannot fly under the fair use doctrine, you don’t have to start a lawsuit right away. Let your starting point be a good DMCA takedown notice created by your new AI lawyer—DoNotPay!

Takedown notices need to include specific information, and researching the necessary legal vocabulary will take too much of your time. Using DoNotPay to create an efficient and well-written notice will take only several minutes:

  1. Set up your DoNotPay account in a web browser that you usually use
  2. Select DMCA Takedown when you log in
  3. Answer a few questions about your content and the infringement 
  4. Confirm your identity and contact details
  5. Hit the Sign and Submit button  

You can create DMCA takedown notices using DoNotPay even if you don’t have proof of ownership! 

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