A Primer on Fair Use for Freelance Writers

Looking at the questions I received from last week’s call for suggestions, there were several people who asked me about fair use and had some very good, pointed questions on the topic.

However, fair use is not exactly a simple topic to delve into. It is a legal topic that is routinely debated by the brightest legal minds and, quite literally, has had countless tomes written entirely about it. Trying to answer specific questions about it is virtually impossible in the space of a single column.

As such, I”ve decided to make my first in this series a primer on the subject of fair use. The goal being to offer a brief background on the subject that I can reference back to in later editions and build upon moving forward.

So, without any further ado, here’s a brief overview of what you, as a freelance writer (or any other content creator), need to know about fair use in order to understand how the law works.

What is Fair Use

In copyright law, it is understood that the copyright holder, usually the creator, has a set of exclusive rights over the work itself including the right to make copies, create derivative works, publicly display, perform, etc.

However, those rights have to be weighed against other’s rights to create new works and their ability to offer commentary, criticism and educate based upon your works. So the idea of fair use was introduced, first by the courts and then codified into the law.

Fair use provides a set of narrow exemptions to the exclusive rights of the copyright holder to create that balance. However, those exemptions are far from cut and dry and there are no bright line rules.

So, before we discuss how a judge and/or jury might go about deciding if a use is a fair use, we first need to cover three very important caveats about fair use that every creator and user needs to be aware of.

1. Fair Use is a Defense, Not a Right: Fair use is a defense to be used in a copyright infringement lawsuit. The only way to be certain a use is “fair” is to be sued for copyright infringement, use the defense and win in court. It does not prevent you from being sued or having other action taken against you if the copyright holder disagrees with your view.
2. There are No “Bright Line” Rules: Though many sites preach 7%, 15%, 30 second, etc. rules there are truly no bright lines. As you’ll see, several factors are weighed and they are constantly being weighed differently. Even worse, a use that might be “fair” in one court room might be an infringement in a different court. There is almost no way to predict how a case will go.
3. Fair Use is a Moving Target: For many of the technologies on the Web, there is no good case law on how fair use applies. As such, with many of the tougher fair use questions, there are no good answers at all and many of the answers we think we do have are slowly changing.

Still, all of this raises the question how might a court decide what is or is not a fair use. Fortunately, the answer is actually simple and can be found in the law itself. It is interpreting the answer that is the problem.

The Four Factors

With the Copyright Act of 1976, which took effect in 1978, fair use was formally codified into copyright law. Specifically, the law designates four factors to be weighed when determining whether a use is “fair” or not.

1. The Purpose and Character of the Use: This look at what purpose the use serves, whether it is for education, commentary, criticism, etc. as well as whether it is commercial in nature. Educational, criticism and, more specifically, transformative uses are seen as being more likely to be a fair use.
2. The Nature of the Copyrighted Work: This looks at whether the original work has been published or not. Unpublished works are seen as receiving greater protection, making uses involving them less likely to be considered a fair use.
3. The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole: This simply means “How much of the original work was used?” The less of the original work used, the better for a fair use argument. For example, a few lines from a novel is better than an entire chapter.
4. The Effect of the Use Upon the Potential Market: This asks how the copyright holder’s ability to earn money from the use has been impacted. The less a use hurts the market for a work, the better.

Through court rulings and discussion since the law was passed, we know that the first and the fourth factors are given the greatest weight though all four are considered. However, often times the easiest way to determine if a use is simply by whether or not the use is transformative, meaning that it creates a new work separate from the original and isn’t designed to replace the original in the marketplace.

But in addition to the four factors listed in the law, there is an unrecognized “fifth factor”, which basically asks “Are you evil?” In short, uses that are offensive, including shocking art, pornography, hate speech, etc. are often given less leeway on fair use issues than other kinds even if, technically, it isn’t supposed to matter what the message is.

Still, the four factors are what you need to know first and foremost and the key to unraveling the fair use mystery.

Moving Forward

In future columns we will discuss specific fair use scenarios. However, it is crucial that writers, as well as all content creators, be aware of how fair use is determined both so they can make such uses of other content and recognize fair uses of their own work.

In the meantime, this should provide a basic primer on how fair use works and its limitations when trying to avoid lawsuits and threats on the Web.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private. This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.