Universities and libraries across North America are celebrating fair use this week. There’s even a twitter handle and hashtag! (@fairuseweek ; #fairuseweek2016) But you might be wondering: what’s fair use, and why is it worth celebrating?
Fair use is an essential balance to United States Copyright Laws. The Fair Use Doctrine permits the copying and reuse of copyrighted materials without getting permission from the copyright holders under certain circumstances.
Okay, so what does that mean? Have you ever made a YouTube mash-up video, or read an article your professor posted on Moodle, or taken selfie for Instagram in front of a work of art? You were exercising your right to fair use! This principle is design to protect creativity, innovation, and scholarship. It allows creators (that’s you!) to reproduce copyrighted works without permission as long as it is done in a limited and “transformative” way, usually for the purpose of criticism, commentary, or parody (this includes book reviews, journalistic work, late night comedy shows, and more!).
But where’s the line between fair use and copyright infringement? Well, that line is very blurry. Some creators avoid even getting close to the line because they fear costly legal cases. When fair use conflicts go to court, they are decided on a case-by-case basis. However, the judges usually consider four main factors:
the purpose and character of your use: why are you copying the work? Commercial reasons? Educational? Artistic? How transformative is your copy? What new information, insights, and aesthetics does your remix create?
the nature of the copyrighted work: Are you copying something factual or fictional? Is it published or unpublished? Factual published works are often stronger cases for fair use.
the amount and substantiality of the portion taken: Are you copying something entirely word-for-word, or are you copying small pieces of the original and connecting them with your own ideas? Again this gets to the idea of how much you are transforming the original work.
the effect of the use upon the potential market: This is all about dollars and cents. Are you making money from your copying? Are you removing potential revenue streams from the copyright holders?
Wow, that’s a lot to consider! Fair use is a complex issue, but it’s important to be informed about your rights as a creator. What to learn more? Fair Use Week is the perfect time! Check out these resources:
Fair Use in the Day in the Life of a College Student Infographic by the Association of Research Libraries (ARL).
Fair Use Tutorial from Stanford University Libraries.
Code of Best Practices in Fair Use in the Visual Arts by the College Art Association (CAA)
Thinking Through Fair Use tool from the University of Minnesota Libraries
And when in doubt, ask a librarian!