FACTORS TO DETERMINE ‘FAIR USE’
July 17, 2017
This is Part III of a series of articles on how to legally use mixed media within novels or nonfiction. Media Attorney Aimée Bissonette has been guiding us through the legal minefield of copyright versus public domain, and, today, how to determine fair use.
Bissonette has worked as a lawyer, teacher, and writer since 1987. Through Little Buffalo Law & Consulting, she helps her clients make smart decisions about licensing their creative works. Her practice focuses on copyright, trademark, contract review and negotiation, and intellectual property rights licensing. She is the author of several books for children and educators. Aimée Bissonette holds a J.D. from the University of Minnesota.
Q: If a work is copyrighted, how does a person determine what percentage is considered fair use? Is the fair use percentage the same for poetry and music as it is for an article or book?
Bissonette: The “fair use” exception to copyright law allows you to use someone else’s copyrighted work in limited, “transformative” instances without the permission of the copyright owner. In determining whether your use qualifies as a “fair use,” four factors must be evaluated:
1. Your purpose or reason for using the work (parody, critique, teaching, and research uses are allowed more frequently than commercial uses);
2. The nature or characteristics of the work you want to use (the use of factual, historic, or scientific works is favored over the use of fictional and other highly creative works);
3. The amount and substantiality of the portion of the work you want to use (this requires an evaluation of the quality and the quantity of the work you want to use, not a straight word count. Steer away from using large portions of a work or portions of the work that are considered key or central to the work); and
4. The effect of your use of the work on the marketability or value of the work. (If your use negatively affects the sale or value of the work, it is not likely to be viewed as “fair use.”)
Applying the four factors can be difficult. The four factors are intentionally flexible so they can be applied to all different types of copyrighted works. You may come across “rules of thumb” that tell you it is okay to use so many lines of a poem or so many seconds of a song. Those are suggested safe approaches, but they are not legal parameters. Unfortunately, copyright law does not provide hard and fast rules.
If you are uncertain as to whether your planned use falls within “fair use,” re-examine the material you want to use. Are you using more than you need? Is there other material (perhaps your own original material or something in the public domain) that would work just as well? If, after asking these questions, you still want to use the copyrighted materials, seek permission.
Thank you, Aimée Bissonette, for sharing your wealth of knowledge and experience!