Fair Use and the Internet. What is Fair Use anyway?

The permissible use of materials found online and how “fair use” analysis impacts such use can be one of the most confusing areas of copyright law. The internet and social media have not changed fair use legal standards, but the easy availability of such materials has led to much confusion. I also think the term “fair” adds to the confusion.

The question usually comes in the form of, “Well, it is freely available on the internet, so it is ‘fair’ to use it, right?” The answer is no. It really has nothing to do with a general consensus of what seems fair. Rather, fair use requires a detailed analysis of four factors established in determining if the use is considered exempt from copyright requirements.

The general rule is that materials found online are subject to copyright protection and cannot be legally used without permission of the copyright owner. There are various ways permission can be obtained, either through an expressed or implied license. I will leave that discussion for another time. Fair use is when you have no permission (license) from the copyright holder. Can you use the materials anyway under a fair use defense?

Fair use is based on the belief that the public is entitled to freely use portions of copyrighted materials for the purposes of commentary and criticism. Although news reporting is one of the examples stated in the Copyright Act as a sort of activity the courts might regard as fair use under the circumstances, there is no blanket “news reporting” exception. Courts will examine the fair use factors, even when finding fair use in the context of news usage, and there are numerous examples in case law where courts have found that the use of a copyrighted work in news reporting is not a fair use.

Courts weigh four factors to determine whether an activity that would otherwise fall within the exclusive rights of the copyright owner is nevertheless permitted and not infringing under a fair use defense:

(1) The nature of the use (including whether such use is of commercial nature or is for nonprofit educational purposes);
(2) The nature of the work;
(3) The amount and substantiality of the taking; and
(4) The effect on the potential market for the value of the work.

The first and fourth factors have been singled out for their particular importance. The Supreme Court has stated that the fourth factor “is undoubtedly the single most important element of fair use.” The Supreme Court also has emphasized the first “purpose and character” factor as being a primary indicator of fair use. The Court focused on whether the challenged use of the copyrighted material is “transformative,” altering the original with new expression, meaning, or message. Mere voiceovers are not transformative; however, editing footage for dramatic effect, including editorial comment or using montages may qualify as a transformative use. In addition, using materials that were intended for a different purpose in the course of news reporting may qualify as transformative.

Under the second factor, non-fiction works have been found to be more amenable to fair use than uses of fictional works. The third factor is often not viewed as a test of amount. Rather, this factor assesses the “quality and value of the materials used.” You must ask if what has been taken is the part most likely to be newsworthy and important in licensing.

You should go through a fair use analysis each time you want to use materials found online that you have not received permission to use. Fair use is more likely for uses that are:

Short in comparison to the length of the original content;
Transformed in some way;
Used clearly in a noncommercial manner (pure news reporting, not entertainment); and
Incidental to the purpose of the reporting.

Once again, just because you found it widely distributed on a public internet platform does not mean it is “fair” for you to use it.

As always, consult your attorney.

Copyright, 2013 Cynthia Thornton

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