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Using existing works

This page explains how copyright law enables people to use works that already exist. The information focuses on one of the main use provisions in United States copyright law, called “fair use.” 

 

Contact us with questions about fair use, or for training.

A variety of uses

We all make many uses of creative works. Some are more passive, like reading, watching, and listening. Some are more active, like copying, criticizing, and remixing. 

A copyright owner has the right to control many things, such as who can make and sell copies of their works, who can show or perform a work in public, and who can make new works based on existing ones. 

There is a lot of overlap between uses people make of copyrightable works, and the kinds of uses copyright owners control. Often, a user does have to have the permission of the copyright owner. Sometimes it feels like every use requires permission.

But copyright owners do not always get to control these things. There are many exceptions where a use is allowed by law, without direct permission from a copyright owner. Most of those exceptions exist to help support the public purpose of copyright.

For example, small business owners can usually play music from a radio (which would otherwise be a public performance, requiring permission) because there is a specific exception in the law for small business use of broadcast media. And teachers in non-profit schools and universities can show or perform creative works in in-person classes, because there is a specific exception for non-profit in-person teaching. Specific exceptions like these cover many uses, but others (such as some uses in online teaching) may be allowed under another piece of the law: fair use.

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Understanding fair use

Fair use is an important part of copyright law that provides some flexibility for users and new creators. The text of the law highlights criticism, comment, news reporting, teaching, scholarship, or research as particularly valuable uses - though fair use is not limited to only those situations. 

Fair use is related to the essential freedom of expression in the First Amendment to the U.S. Constitution. Courts have said that copyright should not be used to try to control how other people speak. Fair use is one of the pieces of the law that ensures that. It is often called the “breathing space” in copyright law for free speech, criticism, innovation, and open exchange of ideas.

At its core, fair use ensures that there are some kinds of uses that do not require permission or payment. But there are no easy rules for fair use - flexibility and complexity go together! 

Even though fair use can be complex, most people can understand and apply it, with a little practice. One good way to develop your general understanding of fair use is to discuss examples with others.

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Rules of fair use

Many people ask for clear rules about what is allowed, and is not allowed, under fair use. But fair use is built to be flexible, so there are not really any clear rules. There are a few people who offer clear rules, but those rules usually have some problems.

Some people have ideas of clear-cut rules that come from agreements developed between a few organizations, or as a result of settlements of lawsuits. One example of a rule like this is, “the first time you use a reading in a course, it’s fair use, after that you have to pay.” This idea is from an agreement made over 40 years ago, and one that never had legal force to begin with. It’s also incorrect about fair use in two different ways! Sometimes a course reading may not be fair use even the first time; but if it was fair use the first time, it may be fair use later on as well.

A different set of misleading “clear” fair use rules sometimes come from the internal risk assessments of commercial publishers or content distributors. Examples of this kind of rule may look like “quoting 250 words or fewer is always okay”, “any video clips over 30 seconds are not fair use”. But fair use has no rules like this about exactly how much of a work can be used, though it does encourage using proportionally smaller amounts. These are guidelines that the publisher thinks will limit their legal risk. But these risk-limiting rules can also be wrong about fair use in multiple ways: for a very short work, using 250 words might be too much; for a longer work, a longer video clip may well be fair use. In some cases, courts support using a whole work as a fair use

Best practices are better guidance

Scholars at American University and other colleagues in many fields have been working to develop codes of best practices in fair use. These best practices are deeply tied to specific contexts of use, instead of offering universal rules. The best practices provide suggestions, compare common activities, and are largely based on input from members of the community of users. Theses Codes are also not legally binding, but do better than hard-and-fast guidelines at acknowledging the flexible (and yes, uncertain) nature of fair use.
 

Of particular interest to scholars may be the Code of Best Practices in Fair Use for Scholarly Research in Communication, for Media Literacy Education, for Poetry, and for OpenCourseWare. Other codes include Documentary Film and Online Video. Because this approach to fair use has developed relatively recently, many fields have not yet developed codes. Still, you may be able to look at the codes for similar fields to draw parallels between them.

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The four factors of fair use

Fair use is not infringement, if it fits within four factors listed in the law. Each of these factors has been interpreted by courts. Courts are very clear that no single factor decides fair use; each one has to be considered.  For each factor, some aspects of a proposed use may fall in the "favors fair use" column, while others may simultaneously "weigh against" fair use. Fair use looks at the whole picture, for each individual use. 

Factor 1: purpose and character of the use

This is the only factor that is about how a new user plans to use something. The other three factors are about the existing work that is being used. 

Purposes that favor fair use include education, scholarship, research, and news reporting, as well as criticism and commentary more generally. Non-profit purposes also favor fair use (especially when coupled with one of the other favored purposes.) 

Commercial or for-profit purposes weigh against fair use. 

Purpose example: A commercial use that is also critical may sometimes be fair use; a non-profit critical use is even more likely to be fair use. 

Factor 2: nature of the original work

One part of this factor is whether the work is published or not. Using published material is more likely to be fair use, and using unpublished material is less likely to be fair use. 

Another part of this factor is whether the work is more "factual" or more "creative". Using a factual work is more likely to be fair use, using a creative work is less likely to be fair use. This is related to the fact that copyright does not protect facts and data. 

With some works, it’s fairly easy to decide whether the work is factual or creative: a textbook is usually more factual than a novel. For other works, it can be quite confusing: is a documentary film "factual", or "creative" - or both? 

Nature example: Quoting from an unpublished weather diary is more likely to be fair use than quoting from an unpublished novel. 

Factor 3: amount and substantiality of the portion used

This is another factor with more than one part. 

One part of this factor is how much of the original work you are using. Using a smaller amount of the source work is more likely to be fair use, and using a larger amount is less likely to be fair use. But courts have been very clear that “amount” here is proportional. 

There is a lot of bad advice about “amount” in fair use - courts have been very clear that it is supposed to be about what -proportion- of the original work is used, but guidelines sometimes give exact numbers. A quote of 250 words from a 300-word poem is less likely to be fair use than a quote of 250 words from a many-thousand-word article. 

Another part of this factor is whether the part of the work that you are using is “substantial”, or central to the original work. It is less likely to be fair use to use central parts of the work, and more likely to be fair use if you use a more peripheral part of the work. 

Whether something is “substantial” is fairly easily understood in some contexts: borrowing the melodic "hook" of a song may be borrowing the "heart" - even if it's a small part of the song. In many contexts, however, it can be much less clear: what is the heart of a TV series? 

Amount & Substantiality example: Copying all the juiciest bits of a new unauthorized celebrity biography before it is published is unlikely to be fair use. But quoting just a couple of them in a book review might be fair use.  

Factor 4: effect of the use on the potential market for, or value of, the source work

This factor is truly challenging - it asks users to think like amateur economists, analyzing existing and potential future markets for a work, and predicting the effect a proposed use will have on those markets. 

But it can be thought of more simply: is the use in question substituting for a sale the source’s owner would otherwise make - either to the person making the proposed use, or to others? Where markets exist or are actually developing, courts tend to favor them quite a bit. Nevertheless, it is possible for a use to be fair even when it causes market harm.

Market harm example: It’s more likely to be fair use to quote extensively from a book that is out of print, than one just published last week. But there is also a market for permissions to quote from many out of print books, so a very extensive quotation from even an out of print book might not be fair use if the other factors aren’t in favor. For a book that is both out of print -and- where there is no market for quotation permissions, fair use would be even more likely.

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Transformative use: another lens on fair use

Transformative use is a relatively new addition to fair use law, having been first raised in a Supreme Court decision in 1994. (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994.) A new work based on an old one work is transformative if it uses the source work in completely new or unexpected ways. Importantly, a work may be transformative, and thus a fair use, even when all four of the statutory factors would traditionally weigh against fair use!

Parody is one of the most clearly identified transformative uses, but any use of a source work that criticizes or comments on the source may be transformative in similar ways. Legal analysis about this kind of transformative use often engages with free speech issues, and unusual artistic techniques.

Courts have also sometimes found copies made as part of the production of new technologies to be transformative uses. One very concrete example has to do with image search engines: search companies make copies of images to make them searchable, and show those copies to people as part of the search results. Courts found that small thumbnail images were a transformative use because the copies were being made for the transformative purpose of search indexing, rather than simple viewing.

Transformative use is a relatively new part of copyright law, so it is still developing. Many commentators suggest that audio and video mixes and remixes are examples of transformative works, as well as other kinds of works that use existing content to do unexpected and new things. There is a lot of room for argument and interpretation in transformative use!

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