The Fair Use Minefield

Fair use is a doctrine in law by which one can make reasonable use of copyrighted content controlled by other rights-holders in one’s own work. For example, one might review a book and quote a short passage as part of the review. Yet while the language in the law seems simple and clear, the fair use doctrine is a minefield of trouble without any bright lines to warn of the dangers. 

The Law and The Decider

The written law on fair use lies in Title 17, Section 107 of the United States Code. The statute in Section 107 acknowledges fair use “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research”. The statute also provides a set of subjective “factors to be considered” when deciding whether a given use is indeed a fair use. 

Notice the phrasing “factors to be considered”. The use of passive construction obscures the actor. Ask yourself though, this one question:

Who is doing the considering?

The answer is that it will be a judge. Or possibly a jury. One or the other.

We can all have an opinion on whether a use is fair use. Authors, editors, lawyers, artists, all of us can opine that a given use is a fair use. We can even argue vehemently! But our thinking counts for little in the eyes of the law. Only a judge or a jury can decide the matter so far as the law is concerned. This leads to my frequently-made statement that:

One cannot know whether a use is fair use until after the trial.

Now this sounds like an awful situation! How would we ever publish anything at all? 

The Reality

One cannot live without accepting some risk. Writers and publishers and other creatives tend to become comfortable with certain patterns of fair use that are common and that appear to be proven over time. Read book reviews regularly, for example, and you'll see the occasional quoted passage from the book being reviewed, and sometimes from other, related titles. Watch enough television, and you're bound to see examples of parody and satire.

Comfort does not imply safety though! It's helpful to look around at fair use examples in your field of endeavor to get a sense for what is normal and unquestioned versus what might be considered as going over the line. But just because "everyone is doing it" doesn't mean you'll win the court case. There's a lot of just plain wrong advice that is given around fair use, and I routinely see fair use claims that strike me as dubious. To assert fair use is to accept some amount of risk.

Safe Harbor, or Not?

There’s no safe harbor when asserting fair use. The only safe harbors are to either: A) Not use other’s content, or B) Get permission in advance. Fair use is really an assertion that one makes when using someone else’s content without permission, and the content owner might disagree. Don’t use content without permission, and there’s no fair use assertion in play to disagree over. 

There’s a body of case law surrounding fair use. Case law is the collection of legal actions around an issue such as fair use, including the specific circumstances of each case and how it was settled. Do some reading to become familiar with fair use issues and case law if you plan to assert the fair use doctrine. Keep in mind that one can be sued at any time, even when one is in the right. 

When in doubt, hire a lawyer. Find one specializing in intellectual property law. A good lawyer will understand nuances in the written law and be familiar with relevant case law, and can advise as to any specific uses and the risks they entail. Remember, the one safe harbor is to avoid fair use from the outset by either not using another’s content, or by getting permission ahead of time.