What Is Fair Use? A Basic Explanation For Aspiring Creatives [MakeUseOf Explains]

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court1   What Is Fair Use? A Basic Explanation For Aspiring Creatives [MakeUseOf Explains]Half of the videos I find on YouTube always have some note in the description about how it’s totally legal for the creator to use songs from their favorite band as background music. Their reasoning tends to always be in the form of two words: fair use.

Unfortunately, this is often because of complete ignorance. Other times its just a total disregard for the law. Either way, most people don’t understand what fair use actually is, and in an effort to educate the general public, I’ve decided to pen a delightful article detailing what fair use actually is.

Gather around, children, for Papa Lockhart is going to tell you the story of the Four Determining Factors And The Big Bad Copyright Infringer.

The Four Determining Factors

According to USC Title 17, Section 107, there are four traits to consider when deciding if something is actually under fair use law:

  • Purpose And Character Of The Derivative Work.
  • Nature Of The Copyrighted Work.
  • Amount Of The Copyrighted Work Used.
  • Effect On The Potential Market Of The Copyrighted Work.

Some people like to skirt around the four determining factors, totally bending the rules to justify their own means. For instance, you’ll see people who say they don’t make any money from the derivative work. Sometimes they will say it’s “educational” without it having any academic value at all. This really doesn’t matter.

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Bear in mind that the law doesn’t change according to your interpretation. It also doesn’t change for ignorance.

Disclaimer: this article¬†isn’t legitimate legal advice. I’m not an attorney, nor would I even be a good one. Just make sure to contact a lawyer for professional legal consultation.¬†Regardless, I feel as though I know fair use pretty well, and I’d like to break down the four determining factors for you.

Purpose & Character Of The Derivative Work

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This is the factor that most people claim to have some knowledge about. However, the purpose and character of your work goes a bit deeper than “I don’t make money off this” or “this is for educational purposes”. Courts tend to decide if the derivative is meant to stimulate creativity of the public or solely bring personal profit to the author. Ultimately, you must decide if your new derivative work¬†advances progress of the arts by adding something new.

This means you can’t just steal the work, and I’d even go as far to say that it extends into putting a popular song on a video. Unfortunately, even education is suffering in this area because profit can be made in this sector, but on the other hand, parody is protected. Do¬†bear in mind that the next three factors apply even if you got by this one scott-free.

Nature Of The Copyrighted Work

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While artistic value doesn’t matter to copyrighted work, fair use takes it into consideration (along with other items such as its fiction or nonfiction status). To keep it simple, you should ask yourself whether the resulting derivative work is creative or informative.

A work that can be considered creative (generally fiction) will likely fall out of favor with fair use. However, if it is something that is factual (generally nonfiction), you will be more likely to stay under the glorious umbrella that is fair use. Furthermore, this applies to work that hasn’t been published. Take secret letters from your Perlupian lover, for instance ‚Äď it’s all protected.

Amount Of The Copyrighted Work Used

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Admittedly, this is a bit of an unclear factor. The general rule is this –¬†the less of the derivative work that is included, the better chance at qualifying for fair use it has. The key is to focus on how¬†substantial¬†it is.

For instance, if you publish an entire book that supposedly critiques another one, yet in the process you add the entirety of the critiqued work in your own, this is definitely copyright infringement. However, a simple attributed quote should be completely fine (just make sure you reference it).

Likewise for music, it seems as though everything is in the favor of record labels these days. For a video, I would apply for something called a sync license by writing to the label and explaining how you plan to use the music. If you are just making a fun video, they may let you use it without cost, but more often than not, you will have to pay.

Effect On The Potential Market Of The Copyrighted Work

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Here’s the kicker:¬†how does your derivative work affect the original creator’s income?¬†There’s a lot of wiggle room here, and it’s typically not in the favor of the derivative work.

For example, consider how your creation affects search rankings online. Could it be possible that more people are watching¬†your homemade lyric¬†video instead of the official one? Let’s say that your video only got a thousand views in a month. Based on standard CPM prices, that’s $3-5 (minimum) that the artist’s company missed out on in advert income. Albeit small, this is lost revenue for the artist’s company.¬†Even if it’s a small amount, your derivative work likely affects the product’s market in some way, and only the copyright holder can decide how much is too much.

Rationalization Often Results In Failure

All four of the above factors are taken into consideration when it comes to fair use, and I’m aware most of them are arbitrary. For the first three, use your gut, and I mean¬†really¬†use your gut. Don’t play the rationalization game. Usually, when you start rationalizing, you end up being wrong. The last one is pretty black and white when you get right down to it.

Some creatives may talk about how dirty it is that big media companies prevent consumers from using their work in derivative creations. I’ve done my share of using copyrighted music in the past (who hasn’t?), but to this argument I still say,¬†“So what? They created it. They decide how it can be used.”¬†

What is your opinion on fair use? Have you ever received a DMCA takedown notice?

Image Credits: Phil Roedor, Diego3336, theeruditefrog, zigazou76, artist in doing nothing

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15 Comments - Write a Comment

Reply

Rob

This whole article reminds me of that old Microsoft joke, where Microsoft’s tech support is accused of providing information that is “Absolutely and totally correct, but completely useless.” Where are the examples (okay, I did se one about a book. But common, who reading this article is going to write a book?) Should your examples not have included things the readers are actually likely to do?
Here is an example, to the best of my understanding. Putting an entire episode of Family Guy on YouTube and adding commentary = BAD
Making a video documentary about crude humor on national television and including a 30 second clip from Family Guy as an example = OKAY
Most people that read that article as written will have no more idea about what they can do then before they read it. Hopefully my comment will help with the education a bit.

Joshua Lockhart

Hi, Rob. Thanks for your input. However, take your Family Guy example. How exactly was it used?

Was it just thrown into the documentary haphazardly, or did the filmmaker intentionally introduce it as an example? What was surrounding it? This is where context comes into play. It’s not just the format that it is in. It’s also how it is placed into the format, and that’s where things can get very particular.

I wouldn’t say the article is useless. Most people do not take even into consideration the four factors. Regardless, it’s obvious that you know a great deal about the law itself, and I appreciate the comment. Perhaps a few examples would have helped on my end.

Reply

Suzi Love

Have to agree with Rob here. A few more examples would have helped. Fair Use is something everyone who uses the internet needs to be aware of these days and one really tricky area is for old photos, prints, maps etc.

Joshua Lockhart

Hey Suzi,

I wrote this article with along the lines of the statement, “Nothing is black and white.” When it comes to fair use, there is no fast-track ticket that clearly defines what you can and can’t use.

I’d assume that anytime you use something that doesn’t belong to you, be prepared for court.

I’m not saying the owners of the work can’t break you ‚Äď they can. I’m saying that you may have a chance if you have tried to adhere to the four factors. Ultimately, fair use is all about building a case for yourself.

Joshua Lockhart

I am the worst grammar-checker when it comes to comments. Ignore the word “with” in the first sentence.

I’m going to go crawl in a hole with my old English textbooks, now.

Reply

Oron Joffe

It should also be born in mind that “fair use” is a legal concept in the American system. In the UK there is NO “fair use”, and I imagine that this would be the case in many other countries.

Joshua Lockhart

Good point, Oron.

Reply

Alejo

People, by force politicians to make brand new laws, must charge to Discographics enterprises big fees for the use of the public space (our air) to spread its productions.
A law that not protect the weak and the most be respected: it is against the people!

Joshua Lockhart

Hi Alejo. Are you saying that copyright protection is wrong and against the people? I’m not sure if I understand.

Elizabeth

Apologies in advance for the “tldr” rant, but I think it is, and that the DMCA is a violation of the First Amendment protection on freedom of expression. Any legitimate purpose it may have in protecting independent hobbyists or small-time “creatives” has been driven into the ground by major media companies’ greed and abuse. We’re talking ridiculous lawsuits with obscene financial judgments, draconian prosecutions, and even FBI invasions of foreign countries where the U.S. has no jurisdiction whatsoever (MegaUpload founder Kim Dotcom in Hong Kong). It has even driven a brilliant young man to commit suicide because he dared to “steal” from a PUBLIC LIBRARY. Public as in supported and thus “owned” by the taxpayers, and accessible through a medium devoid of borders and available throughout the entire world. This is like saying the religion of Islam owns the likeness of Muhammad and can/should bully the U.S. into punishing people for drawing pictures of the Prophet. We don’t bow to Shari’a, and we shouldn’t bow to tight-fisted “private use” rules either.

The only “rights” I believe should be in play have to do with who originated the work, i.e. plagiarism. It would not only be stupid and mentally delusional but impossible to claim that I created Family Guy. But to share a clip of an episode with my friends or even random strangers doesn’t imply that I’m Seth MacFarlane or have any affiliation with Fox or News Corporation. If you don’t want people sharing your work — creating free publicity — then you shouldn’t be in the business of being an “aspiring creative” or even a professional one in the first place.

You know that book “Diary of a Wimpy Kid”? The character and the plotline, I find strikingly similar to the 1990s Nickelodeon cartoon “Doug Funnie.” Wimpy Kid looks like Doug and he’s even a junior high school student who’s picked on by bullies and keeps a journal. Meanwhile, Brian Griffin looks like Snoopy (and he’s even an “aspiring creative” himself, a perpetually frustrated novelist); Stewie looks like “Hey Arnold” if he had an evil baby brother, and Peter is visually and personality-wise reminiscent of Homer Simpson and Archie Bunker with the fat stomach, the Everyman clothes, and the obnoxious attitude. I guess that makes Wimpy Kid’s author and Seth MacFarlane both blatant copyright infringers? MacFarlane off of Matt Groening and whoever created Arnold — but what about Charles Schultz or Norman Lear? Is Groening’s Homer a “ripoff” of Archie? No, they’re “derivative works” or “tributes.”

But what I find objectionable is the fact that I can’t legally share a clip of any of these over YouTube 1) to prove my point or 2) just to show off some of my favorite scenes. I obviously can’t go ahead and have a web series called “Family Man” with a fat loudmouth from New England named Dieter Griffith and call it original. And that furthermore I’m SOL with regards to sharing clips because I don’t have the $$$ for licensing fees and neither do most people. YouTube’s average age must be about 16-18 years old. Kids. Not deep-pocketed CEOs of major entertainment companies. I should be allowed to use a copyrighted likeness of Charlie Brown in a blog post about “wimpy kids” and share a bunch of Peanuts clips or even the entire Christmas special. Sharing is caring, after all; why not spread the word?

The AFI can incorporate clips into their “100 Years” specials because they have the rights, and they have the rights because they can afford to buy them. Steven Spielberg can go ahead and put a clip of an AT&T ad in “E.T.” and have the alien eat Reese’s Pieces and drink Coca-Cola because he can afford to pay the licensing fees from major corporations. But I can’t do my own mashup remix of “Reach Out & Touch Someone” with clips of E.T.’s glowing finger? Boy, I’ve got a glowing finger I’d like to show off to the “MAFIAA”…

Sorry Dave, but DMCA is un-American and needs to go. Infringement on commerce my left cheek, because there is that little stipulation there about Congress not making any laws to restrict freedom of expression of private citizens. That means that companies shouldn’t have the right under the LAW — LAWS, which are made by Congress, signed by the President, and upheld or not by the Supreme Court — to allow financial interest in “intellectual property” to impede on the free speech RIGHTS of private citizens as guaranteed to us by the U.S. Constitution. They should also not have the right to impede on the rights of citizens of other countries where U.S. law does not apply, like the Netherlands, Germany, and Sweden. Possession is no longer nine-tenths of the law now that you’ve got a worldwide system of sharing and distribution that makes everyone an “owner” in some way, shape or form. Don’t these corrupt lawmakers remember the age-old principle of the CONSUMER always being RIGHT?

Joshua Lockhart

Goodness, Elizabeth. I can’t agree with everything you’ve said here, but I did “like” your comment. I appreciate that you would take the time out to write such a response.

I agree that such laws can be abused by more privileged entities, but I stand by the fact that these laws have to potential to protect those who aren’t so lucky. This places us on a level playing field (to some degree ‚ÄstI see the flaws in my statement).

Let me ask you: If you make something, wouldn’t you prefer to profit from it? You are obviously a fantastic writer. Perhaps you wrote a book. What if someone turned it into a movie without your consent?

Sorry for taking a couple of days to reply. I don’t usually get comments like these, so I didn’t even know how I should have responded. : )

Joshua Lockhart

One more thing.

I do agree there needs to be an easier system for using copyrighted material. Some kind of tiered concept that takes into account whether it is for personal use or not. Used to, I could share a movie with my friends in my living room. But now I share things online. There needs to be some kind of adjustment to this.

alejo c

I’m sorry, my comment appears chopped due some kind of edition mistake and my poor usage of English.
A law that not protect the weak and the most of people, it is against the people!
I think copyright protection will be used to shut up the people legally without previous trial to protect corporations. it is obscene.
I’m agree with Elizabeth.

Joshua Lockhart

Don’t worry, Alejo. I understand.

I can see where it can be abused by more powerful people, but I can also see where there is potential to help the little guy.

alejo c

¬Ņprotect the “litle guy”? so naive…
The “industries” must evolve instead of publicizing false numbers of economic looses !
Search this math topic in TEDtalks, capitalism …

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