Image of people walking up sand dunes with fair use quote

Last week, I talked about rights-free images and the fact that fair use isn’t a defense against using someone else’s copyrighted work without their express written permission. Lot’s of people had questions about this: When does fair use come into play? Since I’m not an attorney, I decided to ask my good friend Tonya M. Evans to shed some “legal” light on the matter. She’s written several books on the topic. Enjoy! 

What is copyright?

A copyright protects an author’s original literary or artistic work, whether published (meaning distributed to the public) or unpublished (not distributed at all or only to a few people). Under copyright law, the term “author” has a special meaning: the creator of an original literary or artistic work.

What is Fair Use?

There is no set number of words you can use under what’s called the FAIR USE doctrine.

This doctrine permits use of copyrighted materials without the owner’s permission for certain purposes listed in the Copyright Act, such as criticism, comment, news reporting, teaching, scholarship, or research. While technically infringing on the copyright owner’s rights, these unauthorized uses are considered permissible. It is seen as the “cost” to the creator of copyright protection (i.e., a quid pro quo).

Fair use can be used as a defense against a claim of copyright infringement. Note that it is not sufficient simply to attribute (that is, acknowledge) the source of the copyrighted material. It may get you past plagiarism, but your use still may infringe. The Copyright Act provides four factors to determine, on a case-by-case basis, whether fair use or infringement exists.

  1. Character or purpose of use (for commercial purposes? For one of the listed (aka enumerated) purposes in the Act).
    • Use for profit is not per se infringement and still must be considered along with all four factors.
  2. Nature of the copyrighted work
    • Highly creative? Or nonfiction, fact-based? 
  3. Amount and substantiality of the copied work
    • Did you use it all or only what is necessary for comment, criticism etc.?
  4. Effect on the potential market
    • Have you supplanted (replaced) demand for the original?

When can or should bloggers employ Fair Use?

One of the most important tools of the trade for a blogger is access to and use of preexisting materials. This, of course, creates concerns about whether even a good faith but mistaken belief that your use of copyrighted material is fair, legally speaking. The consequences of getting it wrong can be quite substantial.

If a copyright owner proves a blogger infringed her work, a court could award her attorney’s fees in addition to a statutory damages award ranging from $750-$30,000 for ordinary infringement, regardless of the owner’s actual monetary damages or loss. So it’s critically important to get this right. Transformative uses seem to receive the most fair use protection; that is, using the original in a completely new light. An example would be using an image of a concert poster (even the entire image) in an historical coffee table book as was done in a case involving Grateful Dead concert memorabilia used in Grateful Dead: An Illustrated History.

Any other thoughts?

  • As a rule of thumb, registered works created before 1923 are now in the public domain.
  • Again, properly attributing a source of copyrighted material does not protect the user from infringement. So even a good faith, but mistaken belief that your use is fair may lead to at least a cease & desist letter from a copyright owner or takedown notice from an Internet Service Provider (ISP). At worst? Notice of a lawsuit. That being said, fair use does offer protection as an affirmative defense to copyright infringement claims, and is an important part of the promised balance between an individual’s copyright and the public’s right to unauthorized use for certain preferred purposes, mostly having to do with First Amendment protections and general public benefit of creativity to society.

Image of intellectual property attorney Tonya M. EvansTonya M. Evans is an Associate Professor of Law at Widener Law Commonwealth and teaches intellectual property, entertainment law, property, and wills, trusts & estates law. She is also the author of a series of legal reference guides for writers and industry professionals, most notably Literary Law Guide for Authors: Copyright, Trademark and Contracts in Plain Language. Visit Professor Evans at ProfTonyaEvans.com and her publishing company, Legal Write Publications at LegalWritePublications.com.

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Jeniffer Thompson administrator

Jeniffer Thompson is a publishing consultant and author branding expert. She is the Founder and Principal at Monkey C Media, a leading book services firm specializing in book design, author websites, and Internet marketing strategy. Jeniffer has more than 20 years experience in publishing and would love to help you navigate your publishing journey.