Ask a Lawyer: What's Fair in Fair Use?

Posted by kenny ching

AskLawyer_01_FairUseBIn this series, we seek (nonbinding, fully disclaimed) legal opinions from practicing lawyer Kenny Ching on matters relating to the world of GOOD. Do you have a question? Leave a comment below or tweet @GOOD with hashtag "goodlawyer."So you want to use someone else's work, but you're worried about the correct uses of intellectual property. What is "Fair Use"?"Fair Use" means that even though something is copyrighted (for example, a book, picture, speech, computer program, or architectural design), you can still legally use it for things like commentary, news reporting, and education. Whether you're engaging in "fair use" or copyright infringement depends on a combination of factors:

  • How you use the copyrighted material, including whether your use is commercial, nonprofit, or educational: for example, if you want to use an excerpt from Catcher in the Rye to discuss literary theory with your graduate seminar or book club, you're golden. But, if you want to write a prequel to Catcher about Holden Caulfield for your own profit, you're busted. Finally, if your use of the copyrighted material is transformative-creating a parody (remember Jib Jab's ‘This Land is Your Land"?) is the classic example-then you've added sweat equity to the material and not stolen somebody else's flash of genius.
  • The nature of the copyrighted work: The more fact-based a work is, the more you can fair-use it. The law doesn't want people to be ignorant dummies, and so it doesn't like facts being kept from them by a copyright.
  • How much of the copyrighted work you use: like cologne and f-bombs, the less you use the better.
  • Whether your use hurts the monetary value of the copyrighted work. One of the goals of copyright law is to give creative people a financial incentive to make cool stuff. If your use takes away that incentive, for example, by downloading free music without permission, then you're use isn't fair.
What is Creative Commons? Can I use a CC "non-commercial" image on my blog, which runs advertisements?Creative Commons is the intellectual property soulmate of GOOD. Whereas standard intellectual property law thinks restricting rights is the best, most moral way to get society to produce more cool stuff (by giving people a limited monopoly on what they create so they can cash in), CC thinks that everybody sharing their work for free is the better, more moral way of getting more cool stuff.Cooperative-minded creators go through CC to allow people to freely and easily obtain a license to use their copyrighted work.  The CC licenses have varying restrictions. One common restriction is that you can use the work for any purpose, even your own profit, but you must give attribution to the original creator. You don't have to pay money to the original creator because he gets paid in fame.Another common CC license requires that your use of the material must be non-commercial. In other words, you can use the copyrighted work unless you're trying to make money off of it. If your blog runs ads for which you get paid, it isn't non-commercial, and you couldn't use a non-commercial CC licensed work there.Disclaimer: This material is offered only for general informational purposes. It is not offered as and does not constitute legal advice or legal opinions. Although this information is believed to be current, we do not promise or guarantee that the information is correct, complete, or up-to-date. You should not act or rely upon the information in this material without seeking the advice of an attorney.Illustration by Johana Tran.Read more