Copyright law gives copyright holders the exclusive right to reproduce, distribute, publicly perform, publicly display, and create derivative works from their original creative works. However, there are some exceptions that allow limited use of copyrighted material without permission from the copyright holder. These exceptions are called “fair use.” There are 4 main types of fair use under copyright law:
Criticism and Commentary
Using parts of a copyrighted work for criticism and commentary is considered fair use. This allows scholars, critics, reviewers, journalists, and other writers to thoughtfully analyze, interpret, educate about, and comment on copyrighted material without having to get permission from the copyright holder. For example, a book reviewer can quote passages from a book in a book review without the author’s permission, or a film critic can use clips from a movie in their film review. News outlets reporting on current events can also show copyrighted material like photos or videos without getting permission. Criticism and commentary provides analysis and increases public discourse, which benefits the public good.
Factors in Determining Fair Use for Criticism and Commentary
When determining if using copyrighted material for criticism and commentary is fair use, courts consider these factors:
- The purpose and character of use – Using parts of a work for nonprofit educational purposes like commentary and criticism is more likely to be fair use than using it for commercial purposes.
- The nature of the copyrighted work – Using factual works like nonfiction books is more likely to be considered fair use than using highly creative works like novels or art.
- The amount used – Only using the amount reasonably necessary to make the point and not using the “heart” of a work supports fair use.
- Market effect – Whether the use negatively affects the market and potential sales of the original copyrighted work.
As long as the factors weigh in favor of fair use, using copyrighted material for criticism and commentary without permission does not infringe on the copyright holder’s rights.
Education
Using copyrighted works for educational purposes is also considered fair use in many cases. Teachers can use portions of copyrighted material in the classroom without permission from copyright holders. This allows instructors to provide a well-rounded education using news articles, historical documents, poems, book passages, music, film clips, and more. Students can also incorporate copyrighted works into their own academic work and learning with proper citation. Educational fair use facilitates learning and benefits the public interest.
Factors in Determining Fair Use for Education
In evaluating whether an educational use of copyrighted material is fair, courts examine:
- The purpose and character of use – Using the work for nonprofit educational purposes carries more weight than using it for commercial purposes.
- The nature of the copyrighted work – Using factual works tends to favor fair use more than using fictional/creative works.
- The amount used – Only using the amount reasonably necessary to achieve the educational purpose supports fair use.
- Market effect – Whether the use could replace sales of the original work can weigh against fair use if there is significant market harm.
Instructors and students should be careful not to use more than required of copyrighted works. But as long as the factors indicate the use is fair, copyrighted materials can be used for educational purposes without permission.
Parody
Creating a parody of a copyrighted work is allowed under fair use doctrine. Parodies poke fun at or comment on an original creative work by imitating and transforming it in a humorous way. For example, parody songs, SNL skits, satirical fiction works, and more take existing material and recreate it for comedic effect. This transforms the original work and fosters creativity and social commentary, serving the purpose of copyright law.
Factors in Determining Fair Use for Parody
In assessing whether a parody constitutes fair use, courts evaluate:
- The purpose and character of use – Using the work to parody it and not just replicate it favors fair use.
- The nature of the copyrighted work – Parodying fictional as opposed to factual works is more likely to be considered fair use.
- The amount used – Using only the amount needed to conjure up the original work supports fair use.
- Market effect – Whether the parody could act as a market substitute and negatively impact sales of the original work.
While parodies do borrow elements from existing works, they transform them into something new with a humorous message. So parodies are generally protected as fair use as long as they meet the criteria.
Research and Scholarship
Copying portions of copyrighted material for research and scholarship can be fair use as well. This allows researchers to reference and analyze copyrighted content in their academic studies without constantly seeking permission. Quoting limited passages in scholarly books and journal articles to support arguments and provide evidence is covered, as is replicating experiments from previous research. For example, social scientists can use survey questions or methods from existing research without infringing copyrights. Fair use for research and scholarship facilitates academics and advances public knowledge.
Factors in Determining Fair Use for Research and Scholarship
In weighing whether using copyrighted content for research or scholarship is fair use, courts look at:
- The purpose and character of use – Using the work for the nonprofit purpose of research and scholarship, rather than commercial use, favors fair use.
- The nature of the copyrighted work – Using factual works is more likely to be fair use than using highly creative works.
- The amount used – Only using what is necessary for the academic purpose supports fair use.
- Market effect – If the use does not significantly impact sales of the original, this supports fair use.
As long as the factors indicate the circumstances qualify for fair use, researchers and scholars can utilize copyrighted materials without permission from copyright holders.
Conclusion
Fair use is key to allowing some use of copyrighted works without permission from copyright holders. The four main categories of fair use are criticism/commentary, education, parody, and research/scholarship. Determining whether a particular use falls under fair use depends on an evaluation of the purpose, type of copyrighted work, amount used, and market effect. But fair use exists to spur innovation, creativity, academic discourse, public education, and social commentary. It plays a vital role in balancing the interests of copyright holders with the public benefit.