Fair Use

The defense that allows limited use of a copyrighted work without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship and research - the four statutory factors, what "transformative" has come to mean, and why no rule of thumb about word counts or percentages is the law.

Looking for a lawyer rather than a definition? Skip to the state-by-state list of law firms for this.

What it means

Fair use is the principal limit on the copyright owner's exclusive rights. The statute lists purposes that may qualify - criticism, comment, news reporting, teaching, scholarship and research - and then directs a court to weigh four factors in every case: the purpose and character of the use, including whether it is commercial or non-profit educational; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the whole; and the effect of the use on the potential market for or value of the original. The list of purposes is illustrative and the factors are not a checklist: they are weighed together, and the outcome is a judgment about whether this use, on these facts, is the kind of borrowing copyright should tolerate.

The first factor has come to dominate through the idea of transformative use: whether the new work adds something new, with a further purpose or different character, rather than merely superseding the original. A parody that targets the original, a search engine's thumbnails, a book-search index, a critical review quoting passages, a scholar analyzing a text - these have been held fair; a use that serves substantially the same purpose as the original, even with alterations, weighs against fair use, and the Supreme Court has recently emphasized that the specific use being challenged, not the artist's general style, is what is assessed. Commercial use does not disqualify, and non-profit use does not guarantee; the factor is about purpose, not profit.

Popular rules of thumb - a fixed number of words, a percentage of the work, a number of seconds of music, attribution, a disclaimer - have no basis in the statute, and giving credit is not a defense to infringement, though it may bear on good faith. Using the "heart" of a work can be too much even when the portion is small. Fair use is decided case by case and is an affirmative defense the user must prove, which means a person relying on it bears the cost and uncertainty of litigation. Related but distinct limits include the classroom-performance and library exceptions, which are specific statutory provisions rather than fair use.

Where this comes from

When people hire a lawyer for this

Fair use is worth a lawyer's opinion before publication rather than after a claim, particularly for a commercial project - a documentary, a book, a course, an app - that quotes, samples or reproduces others' work, because the analysis can often be improved by changing how much is used and how, and because an opinion letter bears on wilfulness if a claim is later made. A person who has received a takedown or a demand and believes the use is fair should get advice before filing a counter-notice, since a counter-notice invites the lawsuit that will decide it.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

Find a lawyer for this in your state

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• Copyright Registration and InfringementHow copyright arises automatically in an original work and what registration with the Copyright Office adds - the right to sue, statutory damages and fees - together with the elements of an infringement claim, the exclusive rights it protects, and the remedies and defenses on both sides.
• DMCA Takedown Notice and Counter-NoticeThe notice-and-takedown procedure under which a copyright owner asks a website, host or platform to remove infringing material, the platform removes it to keep its immunity, and the person who posted it may file a counter-notice to have it restored - with the penalties for a knowingly false notice on either side.
• Patent (Utility, Design and Provisional Applications)The federal grant that lets an inventor exclude others from making, using or selling an invention for a fixed term - what can be patented, the novelty and non-obviousness tests, the difference between a utility, design and provisional application, and why the first-to-file rule makes the filing date everything.
• Right of PublicityThe right to control the commercial use of one's own name, likeness, voice and other identifying features - a state-law right that varies in who holds it, whether it survives death, and how it yields to news, commentary and expressive works under the First Amendment.
• Trade SecretInformation that derives value from not being generally known and that its owner takes reasonable steps to keep secret - formulas, customer lists, processes, source code - protected indefinitely under state law and a federal civil statute for as long as it stays secret, and lost the moment it does not.
• Trademark Registration and Likelihood of ConfusionHow a brand name, logo or slogan becomes a federally registered trademark - the distinctiveness spectrum, the use-based and intent-to-use applications, the examination and opposition process - and the likelihood-of-confusion test that decides both whether a mark can register and whether someone else's use infringes it.
• Trademark vs CopyrightTwo different protections that are constantly confused: one protects what identifies your source, the other protects what you created.
• Work Made for HireThe rule that makes an employer, not the creator, the author and owner of copyright in work created by an employee within the scope of employment - and the much narrower rule for freelancers, under which a commissioned work belongs to the client only if it falls within listed categories and a signed agreement says so.

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