by Joanne Richardson
A discussion on the basics of relying on Fair Use within your production
As a creative person, it’s likely that you got into the entertainment industry because you’re passionate about telling stories that inspire people… not because of your love of legal details. Regardless, whether you make documentaries, podcasts, plays, television shows, or movies, it is important for you to understand the concept of Fair Use. In fact, if you have any intention of using previously published content as part of a production, it’s possible that the viability of your next project could depend on how well you understand this doctrine.
The Purpose of the Fair Use Doctrine
According to the U.S. Copyright Office, the Fair Use legal doctrine is intended to promote “freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” Because these circumstances are limited — and the amount of content that can legally be used is also limited — you need to understand that you can be held liable for copyright infringement if you venture outside the parameters of Fair Use when using someone else’s work as part of your own.
In other words, within certain legal limits, you may use portions of other people’s work without permission and without payment as long as your work demonstrates that you are not at cross-purposes with the spirit and intent of the Fair Use doctrine.
Fair Use Explained
While the Fair Use doctrine contains a set of criteria for judging whether a particular use of a creative work can be considered fair, the weight each factor holds can vary depending on the circumstance or work involved. Therefore, the doctrine is more a guideline than a mathematical formula.
Generally speaking, a short portion or excerpt of a creative work that’s used for the purpose of criticism, teaching, commentary, news reporting, scholarship or research may qualify for fair use. However, these uses must also be judged in light of the following four factors:
- Purpose and nature of the use
In determining whether a use is fair, consider such aspects as whether the excerpt will be used for commercial, noncommercial or nonprofit educational purposes or whether the use adds something new that essentially transforms the work without attempting to replace it. Commercial uses won’t necessarily be excluded. They’ll simply be measured against the other three factors.
- Type of copyrighted work
Is the work being used more creative or factual? Is it published or unpublished? In general, the use of fictional works such as novels or creative performance works such as songs or movies is less likely to be looked upon favorably, except, perhaps, in the case of literary, musical or movie criticism. Using unpublished works is also less likely to qualify as fair use.
- Ratio of the portion used to the work as a whole
This applies both to quantity and quality. Due to the vast difference between creative works, every individual case will be different. Consider how central the portion is to the overall work.
- Impact of the use on the marketability of the original work: If the use hurts the current or future marketability of the original work, it’s far less likely to fall under fair use.
While it may be a legal doctrine, Fair Use is not an exact science. It’s more about the intent of the new work and its impact on the original work. As a general rule, using small portions of a work to create a new, different, and non-competing work is much less likely to get you into legal trouble. Since Fair Use is not a simple concept to apply, you should consult an attorney experienced in copyright law before proceeding. A Media Liability insurance policy is also an important layer of protection and can help cover the cost to defend you against a claim for alleged copyright infringement.
This article is provided for general information purposes only and is neither intended nor should be deemed to be a business, legal, or insurance opinion upon which you may rely.