The public domain and creative commons offer plenty of resources for content creation. But what if you want to build on an original work that is copyright protected? For example, quoting a paragraph from a recently released book you are reviewing in the local newspaper? Or what if you want to do a parody of a commercial music video? The safest approach is to get permission from the author to make derivative work from the original content, which, sadly, isn’t always possible. The good news, however, is that there are exceptions to the copyright law which make it possible for you to legally use a copyrighted work without the author’s permission.
The first unambiguous exception to copyright laws is for creating accessible materials to the physically disadvantaged people. For example, braille or audiobooks. The specialized format, however, must contain the statement “Further reproduction or distribution in a format other than a specialized format is prohibited.”
Copyright laws maintain the delicate balance between making knowledge accessible for public benefit and providing the author with the returns they deserve for their work. To maintain the right balance, there exists the most famous and controversial exception to copyright, which deems the use of copyrighted material as appropriate or “fair” if it satisfies a set of criteria inclined towards the benefit of the public and progress of science and arts. This exception to copyright is known as “fair use” in the US. Its less flexible British counterpart “fair dealing” governs such cases in the UK and Commonwealth of Nations. In this article, we’ll focus on fair use as per US law. The idea behind fair use is generic and forms the heart of similar laws in different countries.
There is no one definition for fair use, and what is fair use and what is not is still a topic of hot debates and discussions in courtrooms. Therefore, the only way to get a definitive classification on whether a particular use is fair or not is to get it resolved in court. However, there might be situations when we have to reasonably conclude whether using a particular use would be fair or not.
For example, while writing this blog, we found an extremely informative blog Measuring Fair Use: The Four Factors by Richard Stim. We think quoting a small portion from the original blog verbatim, like the following, would greatly benefit our readers.
Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important To understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict.
The four factors judges consider are:
At this point, you might be trying to shout to us, “You have not obtained the permission to copy that portion! You are violating copyright!” That is absolutely true. We don’t have the permission to copy, and we would very much like to get permission. But we are afraid we might annoy the author by asking for permission, and we are not sure the author would be able to respond by our deadline. So, let’s analyze whether the use is fair or not on the basis of the excerpted factors:
With factors 1, 2, and 4 firmly established and factor 3 reasonably established, we think the excerpt does qualify for fair use. So we can include it here. However, this is by no means a definitive analysis, and as unlikely as it may be, we should be open to any legal notices.
Featured Image taken from copyrightexceptions.eu