If copyright creates a group of exclusive rights in the creator, that should mean permission is needed when you want to incorporate someone else's creative work into your own. But permission is not always needed. Fair use is a concept that can protect you from a claim of infringement when using someone else's work without permission. The question is, when is the use fair?
There is no bright line answer to the fair use question but there is a framework for analyzing the problem. Click here to skip the legalese and jump right to the examples.
The Four Factors of Fair Use
Four factors must be considered when thinking about fair use:
(1) the purpose and character of the use including whether the use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
These factors must be balanced in light of the objective of copyright law which is to encourage the progress of useful arts. Many people suffer from the misconception that if a use is commercial, it cannot be fair. The Supreme Court has rejected that notion:
"Instead, the central purpose of the analysis is to see whether the new work merely supersedes the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative. "
The more transformative the new work the less important the other factors, including commercialism, become.
Let's take a look at each factor using concrete examples of the law in action (often inconsistently) in specific cases.
The First Factor
How and why are you using the original work? That is the essence of the first factor — the purpose and character of use.
The estate of Dr. Seuss tried to shut down a play called Who's Holiday which depicts the character Cindy Lou Who in middle age. The story picks up from where The Grinch Who Stole Christmas left off and things haven't gone well for Cindy Lou.
Cindy Lou is not so sweet and innocent anymore. She's a drug-addled, foul-mouthed, ex-con who had a child with the Grinch then killed him (the Grinch, not the child). The court had no trouble finding that the play is transformative of the original work because it recontextualizes the children's story by mocking its naiveté.
Parody is considered transformative and therefore fair use because of its character and purpose. Scholarship, research and educational uses often also qualify as fair use.
Fair Use Tip
Be prepared to articulate why you have chosen to use someone else's creative work and how you have transformed it into something new or with a different message.
Transformative use has found footing in the visual arts. An LA street artist sued the band Green Day for infringement when they used his image as part of a video back drop for their stage performances.
The court decided that the use was fair because the image conveyed new information, aesthetics, insights, and understandings distinct from the original piece. Incidentally, the street artist, Derek Seltzer, had a copyright registration on his work unlike Rime. But, as they say in the UK, fat lot of good it did him.
The Second & Third Fair Use Factors
Highly creative works are entitled to more protection than works that are less creative. That's the crux of the second factor. Facts and ideas aren't protected by copyright at all.
When Gerald Ford left office, he wrote a memoir in which he explained his rationale for pardoning Richard Nixon. The magazine The Nation obtained a pre-release copy and wrote an article called "Behind the Nixon Pardon." The article quoted 300 words verbatim from the book. Ford's publishers sued for infringement.
The magazine argued that facts aren't protected by copyright. The pardon is a fact of historic significance. Plus, they only used 300 words out of the book and the rest was paraphrased so there couldn't be infringement, they reasoned.
The case went all the way up to the Supreme Court which held that Ford's expression of the facts surrounding the pardon is creative and protected.
The 300 words The Nation took are the heart and soul of the book and were made into the "dramatic focal points" of the article. Even though not many words were taken, the ones that were taken were substantial (the third factor). Everybody wanted to know what Ford was thinking when he pardoned Nixon and The Nation scooped the man's own words.
It was a case of principle, not principal. The publishers were awarded $12,500 for their victory.
The Fourth Fair Use Factor
If use of the original work has a negative impact on its marketability, that weighs against fair use.
In the Sconnie Nation case, a small batch of T-shirts was made from a photograph of the mayor of Madison, Wisconsin. The image was snagged off of the city's website, posterized (reduced to a small number of different tones), the background removed, and the mayor's face was turned green. The photographer sued for infringement.
The court held that the use of the image was fair because the T-shirt did not have an adverse impact on the market for the photograph. This seems plausible. The third factor also supported fair use because the court decided only a small amount of copying was involved. This seems disingenuous but that's how these things go sometimes. Although the court found fair use, the transformative nature (or not) of the work played no role.
Fair Use Isn't Always Needed
When permission is given for use of an original work such as with Creative Commons licenses, a fair use analysis isn't needed. If the original creative work is in the public domain, fair use does not need to be considered. Public domain works are not protected by copyright.
Another example of copyright-free material is a faithful photographic reproduction of a two-dimensional piece of art. The art itself might be protected by copyright, say a new piece of visual art, but the photo of the art is not.
Fair Use Protection Isn't Perfect
Whether using someone else's creative work is fair is a fact intensive analysis — with the possibility of different conclusions depending on who does it. But it is an important analysis to make because it reduces your risk of an infringement claim if you're using someone else's work. Considering the four factors of fair use also protects you from making an incorrect claim that someone else has infringed your work.
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So the company I work for used a photograph of my artwork for the cover of their catalog without any permission from me. They did give me credit in the catalog, but I am not allowed to display the piece of work in the retail outlet. Is this even legal ?
Hi. Useful article, this. Very straightforward. I would like a touch of guidance if I might. Authors like Tom Clancy are fairly credited with making military heroism something of a common cultural approbation — arguably giving many readers, viewers, and these days digital game players, a general sense that using force and guns is patriotic and therefore desirable. Given this, I’m preparing a blog to encourage new writers to effectively reconfigure their plots and stories, replacing militarism and weaponry with collaborative, interactive techYES (as opposed to techNO) emphases and scenes. I’m trying to encourage writers to effectively take the guns and war-making out of recognized iconic works. How close might I be skirting the sharp edges of the fair use doctrine?
I want to use a line from a joni mitchell song as the title of my novel. The line is: Behind from where we came. Is that short enough that it would not infringe on copyright?
I create upcycled denim jackets (classiccotton.net) using used band shirts. I’m occasionally flagged for copyright infringement. I argue that these jackets are my unique creative work using lawfully obtained materials. Am I correct?
I teach fee-based, online courses for teachers. I would like to write an article for my course about the research done by Carol Dweck (Based on her book, Mindsets) so that teachers can learn about her research. I want them to know and be able to use her research findings of “growth” and “fixed” mindsets in working with their students.
I have always been told that ideas cannot be copyrighted but content directly from the book is what is copyrighted. I would like to discuss her research findings in my own words. I will not use any quotes from the book – only my own explanations of her research. Do I need Dweck’s permission to write about her research or only if I use quotes directly from her book?
Kathryn, I want to create sculpting tutorials based on established characters, I will not be selling the pieces but may profit based on Youtube subscriptions, am I violating the fair use?
Kathryn, I wrote a children’s that’s basically a sequel to Rudolph’s time as sled leader featuring a different reindeer that serves the purpose of recontextualizing that entire story. Is that fair use? (Rudolph is briefly seen but not disparaged at all.)
what is the status of any creative work that you make?
So I hear dr seuss is stopping photographers from doing grinch xmas photos. I was going to do them with our mini horse dressed like ” Max” with a grinch costume as a parody. I am seeing this should be ok, but wondering if it falls under fair use?
Kathryn, thanks for taking up this issue for those of us who are equally creative and legally inept. I am thinking of writing a series of books/teleplays that would use famous, deceased performers (such as the Marx Brothers and Three Stooges) as central characters in unique, fictional stories. Is there a prohibition on HOW MUCH I can work the real (and all deceased) people into the story? Thanks again.
You need to check out this post: How to Use Famous People in Fiction, Art and Film. The post and my answers to many of the questions in the comments will help you assess the risk of putting real and famous people into fictional situations. If you have further questions after you’ve read the post, let me know.
Hi Kathryn: I was researching this ‘fair use ‘ and ran across this additional definition, that protects the writer from ‘fair use’ IF it is non published work AND is ‘authorized’ (which has its own definition, as you know). Not just ‘in writing’ but SIGNED, and terms spelled out etc.(i.e. they cant just ‘use’ it) At nolo.com/legal encyclopedia fair-use-rule-copyrighted material, ‘unpublished works are inherently different from published works. Publishing an authors unpublished work before he/she has authorized it infringes upon the authors right to decide when and whether the work will be made public. etc.
Thanks for your tips, they are helpful and give people a place to start their own research.
That’s a great point, Carol. It may have factored into the Ford biography analysis. In most situations, the fair use analysis has to do with already published work. I talk about protections for unpublished work here: How to Protect Your Unpublished Writing which may be helpful in curtailing unauthorized publication of unpublished work.
Thank you for sharing. Unfortunately, I still don’t have clarity on my particular situation. I was wanting to use one line of a famous poem from The Spider and the Fly by Mary Howitt, published in 1828 in this manner: As I drifted off to sleep the first line of Mary Howitt’s The Spider and the Fly poem floated through my mind, “Will you walk into my parlor?” said the Spider to the Fly…
I’ve been told “a work first published prior to 1923 would be the public domain in the United States,” but I get confused when that transitions in to “commercial use” such as a fiction novel. So very confusing! Thanks for providing base info on the topic, that was helpful. Guess I still have more research to do. Don’t want to get sued over one line of text!
Public domain means there are no restrictions on use, even commercial use. You do not have to do any more research. Go ahead and use it.
> Public domain means there are no restrictions on use, even commercial use.
…notwithstanding rights of privacy/publicity and/or trademark issues!
Don’t assume what you see and read on-line is fully correct: Assumptions often can get you in trouble. It’s still highly prudent to perform a due diligence search to double-check the status of a Public Domain work, especially if it will be exploited commercially.
Good point, Evan. I do not see any privacy/publicity/trademark issues in the 1828 poem, but other public domain works could easily raise those issues.
Hi Kathryn. I have written an original song and recorded it myself I have put together a photo compilation slide show to go with the song. I’d like to release it to TVNZ it is depicting the world and NZs journey through Covid. I unfortunately did not know some of the images were not free to use. My intention is to give this song free of charge to an Organization like the Salvation Army to share world wide to help people, make porople think and use for purposes of gaining financial support or their organisation to help Covid victims and anyone affected by it. I tried contacting one of the photographers overseas and the company asked for $350 au for one year use. Each photo shows for o more than 5 seconds. There are 100 photos. Would I be in risk of being sued even if I make no money? Or would this come under fair use? You could email me at email@example.com thanks