Copyright & Fair Use: A Quick Guide
Learn How to Judge Fair Use For Yourself!
This page is a a quick primer on copyright and fair use.
There's a lot of confusion about them, but really, they are not that hard to understand or follow! Learn the basics, then use your judgment, putting yourself in the shoes of authors, artists, musicians and photographers.
Surprisingly, fanfiction probably does fall under fair use. Fansites may not, but are usually tolerated on the "don't rile the fans" principle.
Read on to learn what's legal, what's pushing it.
What Is Copyright?
The right to control how your own work is copied and distributed
Copyright means, simply, legal protections granted to the authors of published and unpublished works to control how their work is distributed, reproduced and displayed. Here is the list of rights granted and reserved to copyright holders in U.S. Copyright Law.
The short story is: you can't redistribute or use someone else's work without permission.
In the US and the UK, copyright lasts 70 years after the author's death.
Giving Credit Does NOT Fix Copyright Violations
It's the ethical thing to do, but it has no legal standing
There's nothing in copyright law that says, "if you give credit (with or without a link back), it's permissible to copy someone's work."
Why not? Well, how would you feel if your boss said, "Here, I'm not paying you for your work, but when we ship this product, I'll be sure to put your name on it!" Similarly, if you make a free download of Star Wars available on your website, it won't make it legal if you add "by George Lucas" below the download link.
We've all been taught in school to give credit, because otherwise we're plagiarizing someone's work by presenting it as our own. But plagiarism means passing off someone else's work as yours. Copyright theft is using someone else's work without their permission. See the difference?
What teachers never explain about copyright is that there's a special fair use exemption for schoolwork, when we're copying handouts or quoting excerpts of literature in our school papers. When we go out into the real world, that "educational purposes" fair use exemption no longer applies. Outside of school, giving credit may absolve us of plagiarism, but NOT copyright violations!
What Is Fair Use?
Fair Dealing in the UK and Commonwealth Countries
Title 17 Section 106(5) of US copyright law stipulates certain exemptions to copyright: special circumstances when someone else's work may be used without permission. These circumstances constitute fair use.
Fair Use is NOT a right: it is a legal defense. If someone sues you for copyright violations, you can't just claim, "Fair Use!" You'll have to go to court, pay court fees, hire a lawyer and get a judge to rule on it. Considering the expense, hassle and appeals process, it's usually easier to give in even if your use is fair use.
So what is Fair Use? The U.S. Copyright Office helpfully cites a number of examples, including parody, education, news reporting, critique and commentary. But these are examples. Fair Use is judged on a case-by-case basis, considering four factors:
The Four Factors of Fair Use - All FOUR Factors Must Be Satisfied!
- The first and most important factor is the purpose and character of the new work that is making use of the original. Nonprofit uses are more likely to squeak by than commercial uses. More importantly, the new use must substantially transform the work or add substantial value, such as a new perspective, new information and insights, or a new purpose.
For example, Google Image Search was ruled "highly transformative" because providing thumbnail images to help people navigate and discover content on the web was a novel way of using those images which turned them from an image to be viewed to a tool for discovering and collating information.
The first factor is why critique, commentary, news, parody, reviews, research and education usually qualify as fair use.
- The nature of the original, copyrighted work also matters.
If it's a published, well-known work, it's already successful, so your use is less likely to compete with it. Whereas an unpublished work has much more protection, and fair use criteria are much stricter, to give the author a chance to publish it.
- Your use must be a limited excerpt to qualify as fair use. Thumbnails of photos, screencaps of movies, short quotations, and brief clips from songs or video games are limited excerpts. Whole copies of original works are NOT fair use.
For example, the landmark Kelly vs. Arribasoft case established that small thumbnail images are fair use, but making full-sized copies of photos is not.
This factor also bars us from using a "substantive" part of the work: that is, a small but vital part of the work, the "core" of it. For example, a 5-second clip of "We will... we will rock you" from the famous Queen song is short, but it's such an important and integral part of the song that it would probably not qualify as fair use.
- The impact on the marketability or commercial value of the original work also matters.
Fanart is not going to make it harder for a video game studio to sell copies of the video game. Whereas a copy of a photo, uploaded to Pinterest or Tumblr, makes it hard for the photographer to sell that photo as a stock photo.
The Four Factors: A Case Study
Read carefully this article on why the Harry Potter Lexicon was judged not fair use, even though it was "slightly transformative."
What About Creative Commons and Affiliate Links?
How are they legal?
Where to Go For More Information
Disclaimer: I am not a lawyer or legal expert.
I have had more than twenty years of experience as a writer, scholar, university instructor, and editor of online archives. During the course of my work, I have had to grapple with issues of plagiarism, copyright, intellectual property rights, and copyright on the web. However, I am not legally trained in copyright law. I've just had to look it up many times.
If my explanations above doesn't answer all your questions, then it's time for YOU to do the research. [[Pretend I'm donning little old lady teacher spectacles.]] The best way to understand copyright is not to ask someone to tell you whether this or that specific case is allowed. Instead, you need to learn copyright basics and the four factors of fair use for yourself, so that you can use your judgment. I figured it out on my own. You can too!
Here are two places to go for help.
First, Taking or Using Photographs of Copyright Material, Trademarks and People summarizes all of this in a well-written article. (PDF format.)
Second, here's where I go when I'm trying to understand the finer points of copyright: the Stanford Law School Guide to Copyright & Fair Use. It has plentiful examples, it's clear and easy to follow, and best of all, it is written by law experts!
Addendum: The Legal Case for Fanfiction
Especially if it's not commercial
The Organization for Transformative Works, a coalition of scholars, librarians, lawyers, artists and writers argues that fanworks are 'highly transformative', adding substantial material to the original and providing new perspectives, commentaries, and insights on the source material in a creative and original way. Fanfiction cases are working their way through the courts, but have yet to establish a hard-and-fast, generally applicable legal precedent.
However, ethically, if not legally, it's best to observe authors' wishes regarding use of their own work. See Fanlore's page on Professional Authors' Fanfic Policies for a partial list of who condones or disapproves of fanworks.
What About Fan Sites Dedicated to a Movie, Book or Game?
It's easy to argue fanfiction and fanart are transformative, or that video game walkthroughs add substantial value. Fan sites have a harder time claiming fair use, because they rely so much on quotes, screencaps, and copies of the original work.
However, game and movie studios often have a "don't ask, don't tell" policy (as a librarian friend of mine says), because they don't want to antagonize fans. Usually they'll allow free PR to stand unless it competes with official products or websites.
© 2012 Ellen Brundige