Fair Use Doctrine: Everything You Need to Know

The fair use doctrine allows certain use of otherwise copyrighted material without having to obtain permission from the holder of that copyright. Generally, if someone wants to use copyrighted material, he or she must first obtain permission from the copyright holder. However, if the person wishing to use the material is using it for a “limited and transformative purpose,” then this constitutes fair use, and would not require prior approval before utilizing the material.

Keep in mind that if you intend to use the material to financially benefit from using it, then you cannot use the fair use doctrine as a defense to such use, even if the use was so minimal.

Four Factor Test

Specifically, there are four factors looked at when wanting to use the fair use doctrine. So, for example, if a lawsuit arises based on copyright infringement, most courts will look to these four factors to determine whether or not what is being copied and used constitutes fair use. These four factors include: [1] the intended purpose of the use; [2] how much is being copied; [3] the nature of the material being copied; and [4] the value of the copyrighted work. 

Intended Purpose of Use

Courts will always look to determine if the person using the copyright material intended to benefit from using the material or mistakenly copied the material. However, be mindful that inadvertently copying the material won’t necessarily protect you if a claim of copyright infringement arises. Courts will also want to know how the material is being used. Is it being used by a teacher for classroom purposes? Or maybe it is being used by a medical professional? Depending on the type of purpose it is being used for, this could either help or hurt your case if an infringement suit is brought against you.

How Much Is Being Copied

Courts will always want to know how much material is being copied. For example, is the copyrighted material an entire book that was simply copied and used by someone? Is it a portion of the book? What about a chapter within the book? Of course, it’s safe to say that the less amount of material being copied, the better. However, even very small portions of copyrighted material could amount to copyright infringement depending on the totality of the circumstances. Unfortunately, even if you believe that you can use the fair use doctrine as a defense, courts may not agree with your belief or reasoning.

Nature of the Material Being Copied

The court will want to know the nature of the material being copied. It will look to the quality of the work – including whether it is fictional or nonfictional. Simply put, if the work is non-fictional, you may have a stronger argument for fair use. This is because the information identified in the material is based on facts rather than beliefs. Therefore, the facts can only be stated in so many ways without using the same terminology or verbiage.

Value of the Copyrighted Work

This is one of the most important factors of all. The overall value of the material being copied is important as courts will generally need to identify whether or not what is being copied is an attempt to substitute the original work. If the value of the work is high, then even if the person copying the material claims it wasn’t done for a financial gain, the courts may in fact determine that it was. But, as previously noted, if you are copying material, you want to ensure that you are not financially benefitting from its use. This is an automatic finding of copyright infringement as you will not be able to use the fair use doctrine in this instance. Don’t forget that, even if you are not currently financially benefitting from the work, you may benefit from it in the future, and courts can look at that additional element too.

De Minimis Defense

If you are facing an infringement suit, you can claim that the amount copied was so minimal, or “de minimis,” that the court will permit the copying of the material without conducting an analysis of fair use. While you can use this defense, remember that a court may not agree with it. Furthermore, even if the use is in fact de minimis, it may in fact amount to infringement if you are financially benefitting from its use or if you have any intention to benefit from its use at some point in time. Further, the value of the work may outweigh the de minimis defense.

When Fair Use in Acceptable

Parodies. Generally, courts will look at parodies with an understanding that copying portions of the original work is required in order for it be parodied. Therefore, unlike other forms of fair use, using a large portion of copyrighted material for use in a parody is allowed.

Criticism. When you are commenting on someone’s work with the intent of providing feedback or criticism, it is usually okay to copy such material. For example, if you copy portions of a newspaper article, which will then be used in a court case, you can use the fair use doctrine. Moreover, when quoting from a legal article for legal purposes, this would constitute fair use. Furthermore, when using portions of copyrighted material for educational purposes, this would generally amount to fair use of the material. 

Material on the Internet. If the material can be found in the public domain, if may or may not be copied without obtaining prior permissions; however, it really would depending on the four factor test mentioned above. Even if the material is protected, you can likely use portions of it indicating that it was found on a well-known website on the Internet.

News Reporting. Generally, when reporting the news, you have the ability to use the fair use doctrine to your benefit. News reporters are usually told what to say when reporting the news, particularly on what type of news is being reported. Often, reports must summarize what was said in a document or interview that took place, and therefore, such use constitutes fair use.

The Fifth Fair Use Factor

The fifth fair use factor is when the judge uses his or her own personal beliefs and opinions to sway the decision one way or another. While some attorneys may argue that this factor comes into play more often than not, it is difficult to know which judge will be hearing a copyright infringement case, and what type of personal opinion he or she may have regarding the circumstances of your case.

Fair Use and Social Media

When copying material and publishing it on a social media website, whether it be Facebook, LinkedIn, Instagram, Twitter, or some other social media-related site, you’ll want to be careful as this can still and does still constitute copyright infringement. Again, you may be able to use the fair use doctrine to your benefit, but you’ll want to keep in mind that publishing copyrighted material in the public domain can be risky as the copyright holder may find out about the material’s use. Believe it or not, people often engage in copyright infringement on a daily basis on social media outlets without even knowing it. For example, if you were to take a well-known saying and publish it on your Facebook page, this would constitute copyright infringement. However, generally people engage in infringement with no penalties because the copyright holder either doesn’t know about the infringement or doesn’t mind use of the material. This includes certain materials being copied for educational purposes, since the clear intent is not to financially benefit from the use but rather for educational enhancement.

If you need help determining whether or not you can apply the fair use doctrine, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.