Explaining The Fair Use Principle for Copyrighted Work

When It’s Okay to Use a Copyrighted Work

Copyrighted Material, Intellectual Property Copyright
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When someone’s work is copyrighted, that means that you can’t claim it as your own. If you want to use someone else’s copyrighted work in a project, then you must follow the proper procedures to do so. You can use a work that is copyrighted depending on the purpose and the amount of the work used. This is called fair use.

What Is Copyright? 

Copyright is the protection of creative work. It’s a personal protection, meaning that the owner of the copyrighted work is the only one who can protect it or give permission for others to use it. Most creative works can be copyrighted, including books, films, musicals, poetry, songs, computer software, and architecture.

Copyright will not cover facts, systems, or modes of operation.

Copyright protection for works created after January 1, 1978, lasts for the lifetime of the creator plus 70 years. After that it becomes available to anyone to use; it’s in what is called the public domain.

Creative work is copyrighted when it is first published, meaning it doesn’t have to be formally registered with the U.S. Copyright Office to have copyright protection. The use of the copyright symbol on a work doesn’t mean it’s not protected by copyright. Assume that a work is protected until you find out it’s not. 

What Is Fair Use? 

You can never use an entire work that is copyrighted, no matter your purpose, but you can use part of a work for some specific purposes. This principle is called fair use. The U.S. Copyright Office says fair use is the use of (a) limited portions of a work including quotes, and (b) for purposes such as commentary, criticism, news reporting, and scholarly reports. 

Fair use is determined by applying the two general criteria (above) to a specific case. A court decides if the use was fair in that situation and there’s no formula about a certain percentage of work or a specific number of words, lines, pages, or copies that can be used without permission. The court will look at: 

  • Purpose of use. Educational or non-profit use is more favorable than commercial use. Courts will balance use with other factors. 
  • Nature of the work. Using a more creative or imaginative work (like a novel, movie, or song) is less likely to support a claim of fair work than using a factual work (like a technical article or news item). Using unpublished work is less likely to be considered fair.
  • Amount of the work used. In these cases, the courts look at the amount in relation to the size of the work as a whole. They also look at both the quality and quantity of the copyrighted material. The smaller the amount of work used, the more likely the court will be to find fair use. However, some courts have found that using an entire work was fair use. That’s why this subject is so complicated.
  • Effect of use on the market or value of the work. The main purpose of copyright is to protect owners of creative works from losing the economic value of their work. If someone steals a song and sells it to the public, the owner loses the money that would have been received from this work. Courts look at how much this use harms the existing or future market for the owner’s work.

If you want to dig deeper, check out the U.S. Copyright Office’s Fair Use Index web page that includes a database of court opinions on fair use in many contexts, including music, internet, photos, review, and commentary.

Copyright vs. Public Domain: What’s the Difference?

After a copyrighted work expires, it’s within the public domain. That means it’s public property. No one holds the copyright to it, so fair use doesn’t come into play. As of January 1, 2019, all works created before 1924 are in the public domain, so you can use them. For works published after 1924, it gets complicated. Most works will show the copyright or say [Public Domain]. But if you aren’t sure, use this guide to public domain works by Cornell University.

You can sometimes tell if someone has a copyright on work because you will see the copyright symbol ©. The standard format for showing copyright is the copyright symbol, the year of first publication, and the name of the copyright holder. For example: © 2019 Copyright Owner.

You can also search the U.S. Copyright Office database online. The database only shows works that are formally registered with the Copyright Office. 

What If I’m Not Sure? 

Even if the copyright notice isn’t on the work, even if it isn’t published, and even if it looks “old,” it still may be copyrighted. If you aren’t sure about whether a work is copyrighted or if your use is fair use, the best thing to do is ask permission from the copyright holder. Write a letter or send an email to the copyright holder, and be sure to include:

  • Where the content will appear; what kind of publication or use. State whether your use is commercial (with the intent to make a profit), non-profit, or educational.
  • Your credentials, degrees, etc. to give your use more validity. 
  • The exact content you intend to use—what lines from a poem or song, what quotations from a book, etc. 
  • An explanation of the importance of this content to your work.