A “Fair” to Remember

With its first use in 1710 England as the “Statute of Anne,” copyright has been the cornerstone of protecting creators’ rights and encouraging innovation across the world. The Copyright Act of 1976 is the basis for U.S. copyright law and it codifies the doctrine of “fair use.” This doctrine allows for the copying of copyrighted material if done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody the copyrighted work without asking for permission.

This is super cool, except that there exists no binding rule or definition as to what “transformative” actually means. There have been numerous court cases trying to pin down the specifics, but we still have not come to any ultimate agreement. Luckily, if you are reading this, you are most likely in an academic institution where you are most likely thinking about commenting or critiquing work. This means your use of copyrighted materials in academic pursuits will very possibly count as fair use.

Fair use is intentionally open and flexible and the language is meant to allow you to apply the doctrine to your own specific situations. A good way to test if your use of material constitutes as fair use is to use a reputable checklist such as Columbia University Libraries’ Fair Use Checklist.

Fair use is an important right that provides balance to the copyright system and supports the constitutional purpose of copyright to "promote the Progress of Science and the useful Arts." The Fair Use Fundamentals infographic explains what fair use is, why it is important, who uses fair use, and provides some examples of fair use. Click to view the infographic.

Here are a few other things to think about when thinking about fair use and copyright:

• Fair use is never a certain thing and relies on a judge to make the overall determination, but you can try to evaluate your situation by considering:
• “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; And the effect of the use upon the potential market for or value of the copyrighted work.” - U.S. Copyright Act
• You still need to cite the original author/creator when using works even if your use falls under fair use! You probably want to be credited for your work and so does everybody else.
• Re-posting social media content, especially without proper attribution, does not necessarily fall under fair use… Your “re-gram” may count as copyright infringement. Again, please attribute creators even if your use is fair.
• Registration for copyright is not required to copyright a work. Your words, your art, your music, if original, belongs to you. If it was created after 1978, you have a right to your work! You also have right to give your rights to anybody else.
• There are some materials that you can copy to you heart’s galore! Anything in the public domain is yours to use for whatever you see fit.

Disclaimer:  The content presented here is for informational purposes only and not for the purpose of providing legal advice. You should contact your copyright office to obtain advice with respect to any particular issue or problem.