• 4-minute read
• 9th February 2020

Copyright Tips for Business Writing: What Is Fair Use?

Most images you see online are subject to copyright. This means you can only use them if you have permission from the rightsholder. But you may also see people claiming “fair use” of copyrighted works. So, what is fair use? And how does it work for businesses and other commercial users? In this post, we look at the basics of fair use of copyrighted materials in the USA.

What Is Fair Use?

Broadly, “fair use” covers the idea that you can use parts of a copyrighted work without permission if it is necessary for a specific reason, such as quoting a book in a review. This applies to any copyrighted media, including texts, audio and video recordings, photographs, and other images.

As a legal doctrine, “fair use” is explained in Section 107 of the Copyright Act. The factors considered when deciding whether something is fair use of a copyrighted word include:

1. The purpose of the use (e.g., whether it is commercial or non-profit and educational). In addition, a “transformative” use that changes the work significantly is more likely to be considered fair.
2. The nature of the copyrighted work, including whether it is deemed an act of creative expression and whether it has already been published.
3. How much was used in relation to the copyrighted work as a whole.
4. How the use affects the potential market or value of the copyrighted work.

Essentially, if you use part of a copyrighted work without permission, you can claim “fair use.” If challenged, though, you will need to prove that your use of the work was “fair.” And if you cannot prove this in court, you may be liable for damages to the copyright holder.

Exceptions to Copyright in the USA

Most “fair use” findings in US law fall into two categories:

1. Commentary and Criticism – You can copy part of a copyrighted work for private study, non-commercial research, or instruction (e.g., a teacher might copy a chapter from a book to use in class). Similarly, you can copy parts of a publicly available work to review or criticize it. You will need to acknowledge the source of the copied material, though.
2. Parody and Pastiche – US law also protects the caricature, parody, and pastiche of copyrighted works (i.e., using or imitating part of a work for humorous or satirical effect).

However, any “fair use” claim comes with various restrictions, such as how much you can copy. And these exceptions almost never cover commercial uses of copyrighted materials, so make sure you are familiar with the law surrounding them before claiming “fair use.”

Public Domain and Creative Commons Works

You should always be careful when dealing with copyrighted material, especially in a commercial context. US law on “fair use” is vague, complicated, and rarely covers business uses. As such, you will usually want to seek permission from the rightsholder before using copyrighted material.

Luckily, there are plenty of images and other media available that anyone can use for free as long as you know where to look. These include:

• Public Domain Works – Works that no longer fall under copyright, meaning anyone can use or reproduce them for any purpose. In the US, copyright terms vary depending on when a work was created and who created it, but typically spans between 70 and 120 years.
• Creative Commons Works – Works released under a Creative Commons license. These limited licenses allow you to use a copyrighted work under certain conditions. Some place restrictions on commercial use, though, so be careful when using a CC work for business.

If you do intend to claim “fair use” over a copyrighted work, though, make sure it does not affect the rightsholder and that you only copy as much as required. You may also want to seek legal advice before doing so, as copyright infringement can be very expensive!