Terms and Policies

Fair Use

What is Fair Use?

Under U.S. Copyright law, Fair Use is the copying of copyrighted material done for a “limited” and “transformative” purpose for example, commentary,  criticism, or parody. Such uses can be made without permission from the copyright owner.

Fair Use recognizes that while the primary purpose of copyright laws is to encourage artistic and cultural innovation, rigid application of copyright law would stifle creativity. We all benefit when creators have the freedom to critique and comment on the works of their peers or reuse artistic material in new and inventive ways.

Under the Fair Use doctrine, may I use any material I want without permission?

No. Every usage of copyrighted work is not Fair Use. Circumstances and context are determining factors as to whether something is Fair Use.

Who makes Fair Use determinations?

In the U.S., the courts decide. As a content creator you should understand the concept of Fair Use and the four factors described below to best determine whether to upload content that contains copyrighted material without permission. Having an understanding of the four factors that determine Fair Use can help you make a risk determination on your use.

How is Fair Use Determined? What are the four factors?

Unfortunately, the only way to get a definitive answer on whether a particular use is Fair Use is to have it resolved in federal court. Judges use the following four factors to resolve Fair Use disputes. These factors are guidelines; courts evaluate each dispute on a case by case basis. A judge has a great deal of freedom when making a Fair Use determination, therefore resolutions in any particular situation is difficult to predict.

The four factors judges consider are:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market

What do the four Fair Use factors mean?

1. The purpose and character of the use:

At issue is whether the material has been used to help create something new or merely copied verbatim into another work. When taking portions of copyrighted work, you should consider the following questions:

The purpose and character of the use

  • Has the material you have taken from the original work been transformed by adding new expression or meaning?
  • Was value added to the original by creating new information, aesthetics, understandings or insights?

For example, in parody the parodist transforms the original work by ridiculing it.

Parody, criticism, news reporting, scholarship, commentary, research and education are areas that may qualify as transformative uses and have traditionally been recognized as Fair Use.

This factor also considers whether your use is “commercial” or “noncommercial.” Content that makes money or promotes a product, service or brand is harder to justify as Fair Use. Personal or educational uses are more likely to be considered Fair Use.

2. The Nature of the copyrighted work

When you are disseminating factual information or information which benefits the public, you have more flexibility to copy from factual works (e.g. biographies, scientific data) than fictional works that are highly creative (e.g. song, novel, play, TV show).

You will have a stronger argument for a  Fair Use determination to be made if you copy material from a published work than an unpublished work. The reasoning being that for unpublished works an author has the right to control the first public appearance of his or her work.

3. The amount and substantiality of the portion taken

How much of the copyrighted material are you using? Is the material you are using the “heart” of the original work.

The less copyrighted material you take, the more likely a Fair Use determination can be made. Using a large amount of copyrighted material weights against Fair Use.

4. The effect of the use upon the potential market

Does your use deprive the copyright owner of income or undermine a new or potential market for the copyrighted work?

Depriving a copyright holder of income will likely result in a lawsuit. This is true even if you are not directly competing with the original work.

What if i give credit to the original artists?

It’s a great idea to provide a credit to the original artist, however crediting doesn’t impact the Fair Use determination.

Does Fair Use apply to the background music in my podcast?

This would not be considered Fair Use. Megaphone discourages using music in your podcast, without obtaining the necessary rights from the copyright holder.