Fair Use

The exception to copyright law that allows for things like parodies and noncommercial remix

How do online content creators make decisions about copyright law? In the course of day-to-day online activities, Internet users are forced to make subtle judgments about one of the most confusing and nuanced areas of law, copyright and fair use. In this study, we conducted semi-structured interviews with eleven content creators who participate in remix and fan creation activities online, to try to probe their legal understandings and attitudes. We found that social norms that emerge among these content creators do not always track to what the law actually says, but are often guided more by ethical concerns. Our participants showed surprisingly similar patterns of understandings and confusions, impacting technology use and interaction online.

Fair use is an exception to copyright law. It allows for uses of copyrighted content under certain conditions. Without fair use, we wouldn’t be able to quote books in book reviews or parody television shows on Saturday Night Live. Fair use is also the part of the law that covers many noncommercial remixes. However, fair use is determined on a case-by-case basis, so there are no bright line rules about what constitutes a fair use. Instead, a judge weighs four factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work (17 U.S.C. § 107)

  • If I’m not selling something, it is definitely fair use. Whether a use is commercial or noncommercial is only ONE part of the first factor weighed in fair use determinations. Though noncommercial uses are more likely to be fair use, there are many examples in past cases of commercial fair uses – including the famous Supreme Court case Campbell v. Acuff-Rose, which found the 2 Live Crew parody of the song “Pretty Woman” to be fair use.
  • Using something in a classroom is always fair use. Like commerciality, educational purpose is just one part of the first factor weighed. If something is for nonprofit educational purposes, it is more likely to be judged a fair use, but there is no blanket exception for educational material.
  • If I attribute something correctly to the source, it is more likely to be fair use. Attribution is actually irrelevant to a fair use determination, and disclaimers don’t really carry legal weight. However, proper attribution is good ethical practice.
  • People have similar misconceptions about fair use, even across creators of different types of media.
  • Perceptions of fair use often track more to ethical heuristics or social norms than to the actual law.
  • In making decisions about fair use, these five things can be completely different: (1) what the law says, (2) what they think the law says, (3) what they think is ethical, (4) community norms, and (5) what they actually do.
  • In considering the role of law for a particular technology, designers should consider not only what that law is but how their users interpret and engage with it.