By Attorney Lloyd J. Jassin

-- Old Yiddish proverb

Unfortunately, many creative projects are stillborn or abandoned, because the author, or the author's producer or publisher partner, was intimidated by the subject of “fair use.” This uncertainty is regrettable, since, under many conditions, fair use allows you to copy, display and publish copyrighted works without payment or permission.  While not a substitute for legal advice, this article provides guidelines that will and help you to avoid potential problems and allow you take full advantage of the fair use doctrine.

The Basics

Fair use allows scholars, researchers and others to borrow or use small portions of in-copyright works for socially productive purposes without seeking permission.   The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster."  Against this backdrop, fair use can be looked at as a balancing act.  It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators.   Fair use recognizes that the reason for our nation's copyright laws is not so much for individual creators, but, rather to promote the progress of  art and science.

While invaluable to both the scholar and the pitchman, it should be noted that fair use is not a right but a defense to copyright infringement.   As such, it should be looked upon as a privilege, and not a right.  The central point is that certain fair use decisions involve risk.   

When Do I Need to Ask Permission?

If your work contains "borrowed" material, and you have not obtained permission from the owner of the work, it can only be used if:

(i) the material is in the "public domain" (i.e. out of copyright);

(ii) the material is immune from copyright protection; or

(iii) the proposed use is a "fair use."

Copyright Safe Havens

While beyond the scope of this article, as a general rule, works published before 1923 in the United State are not protected under U.S. copyright law.  Similarly, copyright does not protect unadorned or fundamental ideas, concepts, procedures, principles or discoveries.  It must be noted, however, that copyright law will protect the way in which an idea, concept, procedure, principle or discovery is expressed.  As is to be expected, the dividing line between a naked unprotectable idea,  and one that is sufficiently clothed to enjoy copyright protection,  is sometimes murky.   As such, courts have written scores of ad hoc opinions that attempt to discern the dividing line between the two extremes.  The task at hand in each case is finding the proper balance between the free communication of facts while protecting the creator's expression..

Fairness is in the Eye of the Beholder

Justice Stewart, when asked to define pornography, said, "I can't define it, but I know it when I see it." Like pornography, fair use is in the eye of the beholder.  It is an equitable doctrine that asks, on a case-by-case basis, whether the unauthorized use advances the purposes of copyright law. Unfortunately, there are no mechanical rules to define with precision what is "fair" and what is "foul."    If you wish to rely on fair use, then, your goal is understand the four factors courts weigh to determine if a particular use is a fair use.  Those factors are:

1. The purposes and character of the use, including whether the use is primarily commercial in nature;

2. The nature of the copyrighted work being borrowed from;

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

4. The effect on the potential market or value of the copyrighted work. Put another way, courts may ask, “Does the use supersede the market for the original?”

From a client counseling perspective, some fair use assessments are straight forward. "Yes, you can use it." In close situations, it may be impossible to dispel all doubt since fair use is a subjective determination.  As an artist, author, composer or other creator, you may not learn whether a use is a fair use until after it has been published.  However, if you choose to assume the risk, you should do so voluntarily and with knowledge. 

Copylaw Fair Use Guidelines

To help evaluate whether a proposed use is a fair use, consider the following:    

• Fair use is not a simple test, but a delicate balancing of interests. Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement.

• While fair use favors criticism, comment, news reporting, teaching, scholarship and research, these uses are not automatically deemed fair uses. Only a court can determine with authority whether a particular use is a fair use.

• Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use.

• Fact-based works, which can be expressed in limited ways, receive less protection than fanciful works that can be expressed in a multitude of ways.

• Visual works -- especially full color, high res works -- enjoy a high degree of protection under copyright law.

• If you wish to take a conservative approach, avoid verbatim copying.  Synthesize facts in your own words.  Keep in mind, however, that close paraphrasing may constitute copyright infringement if done extensively.

• Never copy more of a copyrighted work than is necessary to make your point understood. The more you borrow, the less likely it will be considered fair use.

• Do not take the "heart" of the work you're copying from. If what you've copied is important to the original, it will weigh against finding fair use.

• Courts invariably look at the alleged infringer's literary objective.  Make certain you comment upon the material you borrow or can otherwise justify its use.  By commenting on the original, does it  transform the character, meaning, or message of the original?  If so, that's a socially productive use, which leans -- when all four factors are tallied -- towards fair use.   

• Never copy something to avoid paying permission fees, or to avoid creating something on your own.

• Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone transform a "foul" use into a "fair use.

• Parody (not satire), which is a work that that ridicules or mocks an original work by borrowing elements of the old work, is sometimes protected by fair use. If the new work clearly mocks the old one, it may provide some justification for invoking the fair use defense.

• Being a non-profit educational institution does not let you off the hook. Even non-commercial users can be sued if the use exceeds the bounds of fair use.

• Don't compete with the work you are quoting or copying from. If the use diminishes the market for the copyrighted work (or portions of it), including revenues from licensing fees, it is probably not a fair use. If permission is denied and you feel use is essential to your own work, seek legal advice. Do not quote from copyright material simply to "enliven" your text.

• Remember that fair use is a "defense" to copyright infringement, not a right. When in doubt seek permission or consult an attorney.