In the last couple of columns, I’ve focused on how not to infringe other people’s copyrights so I knew the day would come when I would have to tackle fair use. That time is now!
Most authors know that fair use is a defense to copyright infringement. However, few people have a clear sense of how fair use really works, which is not surprising given that Congress, when adding the defense to the copyright act, intended to maintain flexibility for courts to adapt fair use for new copying technologies and circumstances. The American fair use model is intentionally more flexible and amorphous than similar defenses in other countries. Even the term “fair use” is largely American; many other countries use the term “fair dealing” for activities like reproducing other people’s work in the context of journalism, research, criticism, or commentary.
A (hopefully) fun way into thinking about fair use law is to consider some common misconceptions. How many of the following statements have you heard are true?
1/ If I credit the original author of the work I re-use in my own writing, it’s fair use.
2/ It’s okay to copy someone’s poem or song lyric in a chapter heading/epigraph of a book, but not in the body of a chapter.
3/ All educational uses are fair uses.
4/ All fanction and retellings of popular stories are fair use.
5/ Journalists cannot be sued for copyright infringement
Does it surprise you to learn that NONE of these statements is unequivocally true? Some are 
true in some contexts, but none of them is absolutely true all the time. And that’s because fair use is intended to flexible, to balance competing interests in the copyright holder’s rights to their work, and the need for new creators to repurpose existing works in their own.
I’ll come back to the above statements shortly, but, before we consider why they’re not always true, let’s look at what copyright law actually says about fair use, so we can understand how it applies to these statements.
Congress added the fair use defense to the copyright act in 1976, wanting to retain flexibility and balancing of competing interests that the courts had developed before then. The fair use defense now appears in §107 of the copyright act (aka “Title 17 of the U.S. Code”). For those who don’t want to read actual laws—and who can blame you?—avert your eyes from the next bit, but here’s what §107 actually says:
[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
[Emphasis mine, and I’ve also removed some words to make it easier to read, but this should get the main drift across.]
One of the biggest challenges in understanding § is understanding what it doesn’t say. If you read the first sentence of the section by itself, it would seem like it is saying that if you engage in any of the listed uses—criticism, comment, reporting, research—your work is a fair use. And that is what it would mean if not for the second sentence, which qualifies the first by instructing courts to look at the four factors listed to decide if any particular use is a fair use.
Congress did not to say, for example, that “all research uses are fair use.” What it actually did say is that some research uses are fair uses provided that, after consideration of the fair use factors, a court is convinced that the work meets the fair use criteria set out in factors one to four. These factors instruct the court to focus on issues like whether the person claiming fair use is making money from the work without compensating the original creator, what kind of use is being made, how much of the original work is being used, etc. It’s a complex set of questions in any given case.
It’s also important to note that the four factor test is an instruction by Congress to the courts deciding particular cases, which unfortunately means that unless and until you end up in court and the case is formally decided, you do not know for sure whether your use is a fair use or not. You can have an attorney give you an opinion—and reasonable attorneys differ in their answer to fair use questions—but you don’t know for sure unless a court decides.
Now let’s dive into those five statements and see if we understand why none of them are absolutely true.
1/ If I credit the original author of the work I re-use in my own writing, it’s fair use. (Not true.)
Giving credit to the original author has nothing to do with fair use. It is not relevant to any of the fair use factors. As I noted in my last column, credit is often given in practice, but usually as it’s a condition of a license (i.e. an authorization or permission to use the work provided attribution is given). These arrangements are matters of contract law, not fair use.
2/ It’s okay to copy someone’s poem or song lyric in a chapter heading/epigraph of a book, but not in the body of a chapter. (Not true.)
To figure out if using snippets of someone else’s poem or song lyric is fair use, it is necessary to look at the four fair use factors. It doesn’t matter where in your work you’re using the other person’s words (epigraph/chapter heading, or anywhere else). What matters if how the fair use factors play out. Think about things like how much of the original work you used. Also, are you negatively impacting the market for the original work? Could/should you have paid a license fee?
3/ All educational uses are fair uses. (Not true.)
While research and scholarship are identified by Congress as the kinds of uses that might be fair uses in the first sentence of §107, courts still have to consider the fair use factors in any particular case, including those involving research and teaching. For example, copyright cases involving digital course packs and other teaching materials have been in the courts recently. Even though this copying is for educational purposes, those purposes are also commercial (student fees subsidize the copying and distribution) and they arguably impact the licensing market for those materials negatively.
4/ All fanction and retellings of popular stories are fair use. (Not true.)
Again, whatever the context, courts are required to apply the four factor test to determine whether any particular use is a fair use. If you are writing fanfiction or a retelling based on a public domain work (see note below), you don’t have to worry about copyright at all, but if your work is based on a copyrighted work, and the copyright holder has a problem with it, you may end up with a court deciding whether your use is a fair use based on how much of the original story you used, whether your use was commercial or not, whether your use negatively impacted the value of the original work, etc. High profile cases involving fair use in the publishing context include an unauthorized retelling of Gone With the Wind told from the perspective of the slaves The Wind Done Gone) and an unauthorized Harry Potter lexicon.
5/ Journalists cannot be sued for copyright infringement. (Not true.)
While journalism, like educational use, serves an important societal function, any copying done by journalists theoretically needs to satisfy the fair use test to qualify as a fair use. That’s why journalists often paraphrase or, when copying, do so under license. Journalists and media outlets have been sued for copyright infringement for using copyrighted photographs without permission even though they used them in the context of publicly important media stories. One of the most well known fair use cases involved a popular magazine being sued for reproducing key sections of Gerald Ford’s forthcoming memoir without permission.
A brief note on the public domain. Before I entirely freak everyone out, it is important to remember that you only need to worry about fair use (or alternatively getting permission) for copyrighted works. You are always free to use public domain works any way you want to. I’ve discussed the public domain—and how it differs from the creative commons—in more detail in a previous blog post.
It’s difficult to explain fair use in any detail in a column like this, so of course the above contains generalizations and simplifications. And most fair use disputes don’t end up in court and the parties resolve them in other ways e.g. negotiated settlement. Going to court is the only surefire way to know if a particular use is a fair use, but because litigation is expensive, we don’t get a lot of case law determining whether particular uses are fair uses or not.
As always, this column is not intended as formal legal advice, and if you are concerned about infringing someone else’s copyright and fair use questions, you should seek advice from an expert.