What Is the 'Fair Use' of Copyrighted Work?

When It's Okay to Use a Copyrighted Work

Musician mixing a track at home

 mixetto / Getty Images

Creative works like books, music, and website content are protected by copyright law. Only the creator of the work has the right to use it. But the law also allows limited use, depending on how the content of the work is used, by whom, and the amount of use.

If you use creative works as a teacher, reviewer, journalist, writer, producer, or artist, you need to know about the "fair use" doctrine and how to use part of creative work while staying within its rules.

What Is Copyright? 

Copyright is the protection of creative work and a personal protection, meaning that the owner of the copyrighted work is the only one who can protect it or give permission for others to use it. Most creative works can be copyrighted, including books, digital content, films, musicals, poetry, songs, computer software, and architecture.

Creative work is copyrighted when it is first published; it doesn’t have to be formally registered with the U.S. Copyright Office to have copyright protection. The lack of a copyright symbol on a work doesn’t mean it’s not protected by copyright, but it's best to assume that a work is protected until you find out it’s not. 

What Is Fair Use? 

You can never use an entire work that is copyrighted, no matter your purpose, but you can use part of a work for some specific purposes. The principle behind this concept is called "fair use." The U.S. Copyright Office says fair use is the use of limited portions of a work, including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. 

The Four Fair Use Factors

Four factors are used to analyze specific situations to see if fair use applies:

Factor 1: The Purpose and Character of the Use

Some uses are looked at more favorably than others, and the copyright law lists several appropriate purposes, including criticism, comment, news reporting, teaching, scholarship, or research.

Factor 2: The Nature of the Copyrighted Work

This principle looks at the work and considers the availability and other characteristics. For example, a commercially available work is more protected because use of it might diminish the creator's right to profit from the work. For instance, use of fiction might be less likely to be considered fair use than non-fiction.

Factor 3: The Amount or Substantiality of the Portion Used

The larger the amount of a work that is used, the less likely it will be considered as fair use, but the amount changes with factors like the length of the work. Even a small amount might not be fair use if it goes to the "heart of the work." Photographs are a special case, since it's difficult to use just a small part of a photo.

Factor 4: The Effect of the Use on the Potential Market or Value of the Work

This factor is complicated because it depends on "value," which is difficult to measure. Value can be more easily proved if the use is commercial, as opposed to research or scholarship.

A court decides if the use was fair in that situation, and there’s no one-size-fits-all formula about a certain percentage of work or a specific number of words, lines, or pages that can be used without permission.

Famous Cases in Fair Use Law

Fair use is determined by applying the criteria and four factors to specific cases. Here are some cases that show how individual cases were decided.

Text Cases

  • The Reverend Jerry Falwell published disparaging remarks made by publisher Larry Flint (Hustler magazine) against him (Falwell), distributing several hundred thousand copies as part of a fundraising effort. Falwell's copying didn't diminish the sales of the magazine since it was already off the market.
  • A company published a book of trivia questions about the events and characters of the "Seinfeld" television series, including actual dialog from the show. The court decided it was not fair use because the book affected the owner's right to make derivative Seinfeld works.

Artwork, Visual Arts, and Audiovisual Cases

  • A court decided that it was fair use, not an infringement, to reproduce Grateful Dead posters in a book because the posters were reduced to thumbnail size and reproduced within the context of a timeline.
  • A TV news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death. The court felt that the portions taken were substantial and part of the "heart" of the film, so no fair use allowed.

Music Cases

  • Someone running for political office used 15 seconds of his opponent's campaign song in a political ad. Fair use was allowed because only a small part of the song was used and it was for political debate purposes.
  • A woman downloaded 30 songs using peer-to-peer file sharing, claiming she was reviewing them to see if she wanted to buy them. Fair use was not allowed because many sites allow listeners to sample songs before buying.

If you want to dig deeper, check out the U.S. Copyright Office’s Fair Use Index web page that includes a database of court opinions on fair use in many contexts, including music, internet, photos, review, and commentary.

Copyright vs. Public Domain: What’s the Difference?

After a copyrighted work expires, it’s within the public domain. The term "public domain" refers to works that are not protected by intellectual property laws. No one holds the copyright to it, so fair use doesn’t come into play. 

As of January 1, 2021, all works created before 1926 are in the public domain, so you can use them. For works published after 1926, it gets complicated. Most works will show the copyright or say [Public Domain]. But if you aren’t sure, use this guide to public domain works by Cornell University.

Finding Out if a Work is Protected by Copyright

You can sometimes tell if someone has a copyright on work because you will see the copyright symbol ©. The standard format for showing copyright is the symbol, the year of first publication, and the name of the copyright holder. For example, © 2021 Copyright Owner.

You can also search the U.S. Copyright Office database online. The database only shows works that are formally registered with the Copyright Office. 

What If I’m Not Sure? 

Even if the copyright notice isn’t on the work, isn’t published, or even looks “old,” it still may be copyrighted. If you aren’t sure about whether a work is copyrighted or if your use is fair use, the best thing to do is ask permission from the copyright holder. Write a letter or send an email to the copyright holder, and be sure to include:

  • Where the content will appear; what kind of publication or use. State whether your use is commercial (with the intent to make a profit), non-profit, or educational.
  • Your credentials, degrees, etc. to give your use more validity
  • The exact content you intend to use—what lines from a poem or song, what quotations from a book, etc.
  • An explanation of the importance of this content to your work