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  • Daniel D. Sanders

Copyright and Fair Use Law for Creators

Updated: Jul 15, 2019

Copyright laws can seem confusing and difficult to navigate. To tell the truth, they are complicated. However, they are also important for creators to understand. Copyright laws determine what you can publish as your own original work, as well as what can lead to lawsuits against you. To give your work the best chance of survival, it is a good idea to become familiar with copyright and fair use law.


Copyright and Fair Use Law


At the simplest level, copyright is a bundle of rights granted to the creator of an original work. When you make something, you automatically have a copyright on it. Your work is protected, and no one else can use it without your approval. But, copyright works the other way also. You can’t use someone else’s copyrighted work without permission – unless it falls under fair use.

Fair use is a legal doctrine that allows limited use of copyrighted material without needing to get permission from the copyright holder. The point of fair use is to allow people to use copyrighted material in ways which benefit the public interest. Whether use of copyrighted material is considered fair use depends on four factors:


1. The purpose and character of the use


2. The nature of the copyrighted work


3. The amount and sustainability of the portion used in relation to the copyrighted work as a whole


4. The effect of the use on the potential market for the copyrighted work


These factors do not have a predetermined relative importance. They instead come together in different ways depending on the context and characteristics of each case, but how a creation fares in each of these categories nevertheless determines whether it violates copyright law.


Purpose and Character of Use


The purpose and character of use involves what you are using the copyrighted material for. A court evaluating a fair use question will first want to know:


· The overall goal of your work


· Whether that goal is in the public interest


Content that is made for the purposes of criticism, comment, news reporting, teaching, scholarship, or research are specifically identified by the fair use law as more likely to be protected.


Fair Use and Public Interest


This public interest distinction is often described as commercial vs. non-profit, but these categories do not fit particularly well in a modern context because commercial use can be in the public interest.


For instance, educational YouTube channels can earn money for their creators while still being informative. Regardless, the purpose and character of use can be very subjective, and there are no hard and fast rules that determine whether something falls within the public interest.


Adding New Meaning


The purpose and character of your work also takes into account whether you are using the copyrighted material to make something new. This considers whether your work has added new expression, meaning, or message to the original work, which your work can accomplish by being transformative or productive.


Transformative use can occur through comment, criticism, parody, or satirization of the original. In other words, the original content has been transformed to deliver a new message that differs from that of the original.


Productive use means that new insight or information has been added to the original work through your work, thereby increasing public knowledge.

Both productive and transformative use build upon the original work, providing new insight or perspective.


Nature of the Copyrighted Work


This element of fair use considers what the underlying work is – namely, whether the original work is public or private in nature, and whether it is factual or creative. Private works receive more copyright protection in order to preserve the original author’s right to be the first to publish the work. Works that have already been published or released require less protection, and therefore weigh less heavily against the fair use of somebody adapting the work.


Facts and data are not protected by copyright law, so it is also important to consider whether the original work is factual or creative. A new work is more likely to fall under fair use if the original is primarily factual than if the original is a creative piece.


Proportion of Original Work


Another factor in determining fair use is the amount of the original work used in the new work. For instance, using a short clip from a short video is much more significant than using a short clip from a long video, and the clip from the short video is therefore less likely to be considered fair use.


However, percentage is not the only relevant information for evaluating fair use in this category. Very small percentages of the original work can sometimes be considered violations of fair use, while using the entire original work can be perfectly fine. This has to do with the “heart” of the work, which is considered more important to the character of the original work than other parts.

For instance, the hook or the melody of a song might be considered more important than other portions of the song, and therefore would therefore be less likely to qualify for fair use. On the other hand, certain works such as parodies and critiques may require use of the heart for context, and therefore could use the heart of the work or the entire work while still falling under fair use.


Effect on Original Work’s Markets


It is also important to consider the effect that a new use of a copyrighted work might have on the potential markets of the original. A new work is unlikely to be considered fair use if it uses the original work to enter a market that is “traditional, reasonable, or likely to be developed” by the original creator. A new work cannot fairly deprive the original creator of a potential market that they could have entered with their copyrighted work, whether or not they have actually planned to enter it.


If you could realistically get a license from the copyright holder to adapt their work for your intended purpose, you probably should get the license to avoid violating fair use.


Exception to the Markets Rule


There is one exception to this rule: parody. Parodies inherently need to go straight to the heart of the original, because capturing the essence of the original and making fun of it is the entire point. A parody can take away income from the original by convincing people to view the parody instead. Parodies also poke fun at the original, so they could potentially diminish or destroy the market value of the original through criticism. The court reconciles this apparent contradiction by arguing that a parody and the original serve different market functions. Often, the original is serious, while the parody is goofy or comedic. Audiences would not consume the works interchangeably.


From another perspective, the courts have not recognized parody as a potential market for copyright owners, so making a parody does not deprive the original author of a potential market that they could have entered. A parody can therefore fall under fair use, even if it appears to interfere with the market performance of the original.


Benefits of Fair Use


Copyright protections are an important part of encouraging innovation by allowing authors to maintain control and ownership of their original works. However, fair use also serves an important role in encouraging innovation by allowing new works to build upon existing works under specific conditions. Although fair use law may at times appear inconsistent or difficult to follow, it still serves as the basis of a legal framework that allows criticism, comment, education, and other activities in the public interest while protecting the rights of creators. Learning about fair use can help creators to defend their work from copyright abuse.


Therefore, it is useful for creators to understand fair use in order to maintain and build upon the constructive elements of the fair use ecosystem we benefit from today.

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