Have you ever photocopied an article for a research paper, viewed Andy Warhol’s art, listened to the music of Weird Al Yankovic, or watched The Daily Show? None of those things would be possible without the fair use doctrine.
You are probably familiar with the basic principles of copyright law. The creators of works like books, music, and art own the rights to those works. This means that, for example, we can’t all make copies of a popular book and sell them and make a ton of money for ourselves. We would be profiting from work we didn’t do, which is unfair, but also there would be no incentive for the author to write more great books. Makes sense, right?
However, there are times when it also makes sense to use pieces of existing works in different ways and that’s where the doctrine of fair use comes in. For instance, because of fair use we can quote a few lines from a book in a review, record a tv show to watch later, create a parody, or copy a computer program in order to develop another program that works with it. These are limits to copyright law that are necessary to ensure continued creativity and innovation.
How do you know if what you want to do is covered under fair use? There are four factors to take into account:
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of the portion used
- the effect of the use on the market or potential market
This is a balancing test, and all four factors must be considered. It’s nuanced, not scientific, and a frequently cited fifth factor is that of good faith. For more of an explanation of the four factors, see this great explanation from Stanford University. For those of you looking for a quick overview of fair use, there’s a simple infographic here. See the official Fair Use Week site for more information, resources, and news.