Fair Use: This isn't the rule you're looking for

I’ve been having a lot of conversations about Fair Use recently, with clients telling me they can use part of someone else’s film in their own because it’s “Fair Use,” or that musicians have a “2 minute Fair Use Rule.”

That's not how Fair Use works, and I'm writing this post to keep my arts fam out of court--because a lawsuit won't help you master your medium.

Before explaining what Fair Use is, here’s a little background on Copyright to help put things in perspective.


Copyright Background

A Copyright is a legal right: it gives the creator of an original work an exclusive ability to sell it, display it, or just generally use it.  Copyrights don’t protect ideas or facts; they only come into play when your idea leaves your head and moves onto something tangible and permanent.  The magic words in legalese are “fixed in any tangible medium or expression.”

Some examples:

A painter comes up with an idea for a painting (no copyright).  The painter then paints the idea onto canvas (copyright in the painting).

A poet comes up with a few lines in the shower and recites them aloud (no copyright).  The poet then writes those lines on paper (copyright in the poem).

Theoretically, a 7th grader’s letter to her parents from summer camp could be copyrighted…although I’m guessing this isn’t really a thing anymore.

Yes, you do automatically get a Copyright the moment you put something in a tangible medium, and you don’t have to register the work, but it’s really wise to make your copyright ‘official.’  Having a registered copyright allows you to sue others, and to get specific amounts of damages set by law.  Maybe someone took a picture of your painting, did a canvas print out, and is selling it for $100 a pop.  If they sell one, your real damages might be $100, but if you’re registered the other party might be liable for over $100,000.

What’s most important for understanding Fair Use is that the creator doesn’t just own their work; they also have the legal right to exclude others from using it.  The poet doesn’t just own the poem, she can also decide who gets to use the poem. 

How does this play out?  Generally speaking, the copyright owner has the exclusive right to:

            a) publicly perform or display the work,

            b) make copies of the work,

            c) sell, donate, rent, or even lend those copies, and

            d) make derivative works (like translating a song, or turning a book into a movie).


Fair Use—It might not be what you think it is

If you ever want to get sued really quickly, you commit copyright infringement—you use someone else’s copyrighted work without asking their permission—and then you can bring Fair Use into play.  Fair Use is a defense against a claim of copyright infringement.  It’s not some kind of blanket rule letting you use someone else’s work, it’s something you give a judge as your reasoning so that the lawsuit goes your way.

From my perspective, it’s unwise to rely on Fair Use because this defense method doesn’t even have a real standard.  There is no set number of minutes, words, or copies that can be used without permission; it’s really about your reasoning on a set of factors.  Section 107 of the Copyright Act https://www.copyright.gov/title17/92chap1.html#107 specifies six specific examples that might qualify for fair use—criticism, comment, news reporting, teaching, scholarship, and research.  But even each of these has their limits.  Going back to the court room, a judge will examine how and why something was used based on the following four factors:


1. Purpose and Character of the Use: This takes into account where on the spectrum of

<Trying to Make Money>-------------<Nonprofit Education>

you fall.  It also heavily considers whether your use was “transformative”—if you added new expression or meaning to the work, you’re in a better position than if you just flat out copied it.

2. Nature of the Copyrighted Work: Copyright Law’s goal is to promote creative expression.  If people can just take your fictional work whenever they want, you may not have the incentive to create.  Factual information from a technical article or a news report, on the other hand, doesn’t really relate to create expression.  For a Fair Use defense, Fact > Fiction.

3. Amount and Substantiality of the Portion Used: This one is specific to each individual work.  If you use a tiny bit of something big you’ve got a better claim for Fair Use, but if it’s really the “heart” of the work, that one central line around which the whole story revolves, you might not pass.  In select cases, using the whole work has been held to be legal, but less is generally safer than more.

4. Effect of the use upon the potential market for or value of the copyrighted work:  Are you taking money out of the creator’s market?  If your use goes widespread, do people need to go to the original creator, or can they just buy from you?  The more you hurt the creator’s bank account, even potential hurt, the more likely you won’t pass.


What does all of this mean?  If you play 15 seconds of a Beyoncé song on a 10-minute YouTube video where you discuss the accomplishments and impact of women in music as part of a school assignment, you might be fine.  On the hand, if you lifted a couple of songs from Lemonade when it first came out on Tidal and put them on your YouTube channel trying to get more followers, you might be in for a bad time.

So how do you safely use someone else’s work?  Easy—you ask for permission…and no, crediting the source isn’t enough.  You want actual permission, and you want the permission in writing.

I don’t want to be a fear-monger here, but this need for permission runs deep.  As a bit of an extreme example, the HBO sitcom ROC had a scene where there was a poster of a quilt in the background. Not a quilt, a poster of the quilt, in the background.  This quilt was shown a total of 9 times over a 26.75 second clip, with the longest shot being 4 seconds long.  The court decided the use of that poster was copyright infringement and users had to pay up.  More info at Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).

When you ask for this permission there’s a pretty good chance the copyright owner will want you to pay for it.  That’s ok, you just need to be prepared for it, and you need to have a strategy.  Don’t tell Kendrick you want to use DAMN. in a movie you’re making, be specific on how you’re going to use his music, and make sure you’re humble about it  (…get it?).  Say you want to use 30 seconds of DNA in an important scene of a documentary, to drive home a social message.  Explain that you don’t expect to make any money with the project, you’re just in it to make an impact.  In a lot of cases you might not be able to afford the first price you get, but put in some work with the owner to bring your price down.   It might not get you anywhere, but showing up with your hat in your hand can’t hurt.

So what’s the TL;DR?

Fair Use isn’t a rule that let’s you use someone else’s work; it’s a defense against a lawsuit.  Stay safe, and always ask permission before using someone else’s work.


****Fun fact, this post is protected by Copyright law, so please don't Fair Use it on me