The Cyberlaw Guide to Protest Art: Copyright Part 2— Fair Use

8 min readJan 22, 2018

This is the Copyright section of the Cyberlaw Guide to Protest Art. It covers the law of fair use — what it is, how fair use is determined, and the risks of fair use. To get an overview of the complete Guide, visit the Roadmap, or link to the other sections here:

Copyright Part 1: what copyright protects (and what it doesn’t) and how to deal with copyrighted works
Copyright Part 3: getting permission to use the work of others — how to identify a copyright owner and how to make a license request
Trademark: what trademark protects, and when you can use another person’s trademark (with or without their permission)
Rights of privacy and publicity: legal rights of privacy and publicity, which are implicated when protest art features real people
Sharing and merchandising your work: licensing your work including with Creative Commons, using disclaimers, and making money

Fair Use

What is (and isn’t) fair use?

Fair use is a limit on the exclusive rights of copyright owners. Fair uses are “reasonable” and have societal benefits. Even if someone holds a valid copyright in a work (and thus has exclusive rights), they can’t stop anyone from making a “fair use” of that work. Fair use does not allow creators to rip off others’ works for their own private gain.

A classic example of fair use is criticism: imagine a world where you needed to get the creator’s permission to write a negative review of their work. Not too many creators would say yes, and our culture would suffer for it. Criticism is an essential part of the open dialogue that moves our culture forward, showing where there are opportunities for us to continue to learn and improve. The applications of fair use extend far beyond criticism — fair use stands as the legal underpinning for the existence of sampling, parody, educational uses, and more.

Why do we have it?

Fair use is a reminder of the Constitutional rationale behind copyright. The copyright system is supposed to support the progress of “science and useful arts” in our society. Fair use is, in essence, how our law acknowledges that some uses of copyrighted works are so beneficial to our culture that we should always allow them, even during the term of copyright protection. We don’t want to give copyright owners the ability to say no.

How do I know if a use is a fair use?

It’s hard to answer this question in the abstract, because fair use often comes down to a judgment call. This particular area of law is rarely black-and-white. You often have to use your best judgment or get advice from others on whether your use is the kind that the fair use doctrine protects.

There are four main factors that the copyright statute says you have to consider, which we explain below. However, you shouldn’t think of each factor independently. Instead, think of the decision like a set of scales onto which you can place different types of weights: bigger ones for more important factors and stronger arguments, and smaller ones for less significant factors and less clear cases. Here are the factors to consider:

1. Type of use (its “purpose and character”)

This is usually the most important factor in a fair use analysis!

Using copyrighted work for the purpose of criticism, commentary, or parody is generally fair use because of the public interest in robust dialogue.

A use that is more “transformative” (has a different purpose, changes the character of the work, or gives it a new meaning or message) is more likely to be fair use. A great example of transformative use is Marcel Duchamp’s version of the Mona Lisa, with the moustache, goatee, and off-color comment¹: Duchamp’s additions to the famous painting give it a new meaning, mocking the self-important reverence that the French bourgeoisie had for that painting in particular and traditional European culture more broadly.
Noncommercial and educational uses are more likely to be fair than commercial uses. However, commercial uses can still be fair use: think of news reporting. For-profit news outlets rely on fair use every day. If you’re thinking about whether to run ads on your website or YouTube video, this factor will weigh in favor of uses on websites without ads or other commercial promotions, but it’s only one factor out of four. Running ads isn’t an absolute bar to claiming fair use.

2. Impact on the original work (“effect on the market”)

This factor asks you to think about how your use could impact the work that you’re borrowing from. If what you’re making is a replacement — something that would steal sales and attention from the original — then it’s not likely to be a fair use. That includes derivative works: if what you’re making is something the owner usually would make (or give someone else permission to), it’s not likely to be a fair use. For example, say a painter specializes in oil portraits, but has never made t-shirts featuring her portraits. She still may eventually decide to create t-shirts or other merchandise using her paintings. If you were to create a line of tote bags featuring the artist’s paintings plus additional text without obtaining her permission first, it likely wouldn’t be fair use — that’s just copying.
If the intention of your work is very different from that of the original work (for example, collaging lots of news articles together to illustrate a trend in the coverage, rather than using one headline to communicate breaking news), it’s more likely to be a fair use.
If there’s not a great market for the original work (for example, the original author was already distributing it for free), your use is more likely to be fair.

3. Type of original work (its “nature”)

A use of a highly creative work (like a comic or song lyrics) is generally less likely to be fair than a use of a heavily factual work (like an investigative news story). That doesn’t mean you can’t make fair uses of highly creative works, but you’d want some other factors on this list to be strongly on your side.

4. How much you use (“amount and substantiality”)

The key to this factor is whether you’re using an appropriate amount of the underlying work. You should only use what’s necessary to make your point. If you’re making a documentary and you use a film clip as evidence for an argument, but then let it keep rolling for another minute after you’ve made your point, just because the footage is beautiful or the story is entertaining, that extra minute is not likely a fair use.
Using a smaller portion of a copyrighted work is more likely to be fair use, but there are plenty of examples of fair use where the entire work was used: think of Duchamp’s edit of the Mona Lisa. He used the entire painting, because using a cropped piece of it would have distorted the statement underlying his work.
Using the heart of the work (like the hook or chorus of a song, or a climactic excerpt from a book) is less likely to be fair use — even if it’s a tiny piece — than using a less significant part.

As we noted above, deciding whether a use is a fair use isn’t as simple as just counting up the factors (“three for me and only one against — I win!”). For starters, the first two factors in our list tend to be more important than the others. Courts will particularly emphasize whether a use is transformative, as well as the extent of its impact on the market for the original.

When you picture a scale, weighing the factors that go your way against the ones that tip against you (and remembering that some factors are heavier than others), which side looks heavier on the whole?

“ Bufotes balearicus female quadrat” by Richard Bartz (CC BY-SA 3.0)

How risky is fair use?

Unfortunately, there’s always some risk involved for the fair user. Obviously, there is less risk when the scale is totally weighted on your side (such as if you’re making a noncommercial use that wouldn’t in any way impact the market for the original, and you’re not using much of the original in the first place), and more risk if the scale is weighted more evenly or tilts against you a bit.

If the copyright owner disagrees about your use — and this can happen even when, in your estimation, the scale is totally weighted in your favor — the owner can take you to court. Defending a copyright infringement suit can be expensive and time-consuming, even for those who win in the end. On the other hand, you can’t beat the cost of fair use (free) and the timetable is totally under your control (you choose how long to spend researching and deliberating).

In weighing the risks and benefits, you should consider:

The strength of your claim: Are the four factors weighing strongly in your direction, when you consider their relative importance and the strength of your arguments?
Any information you have or can get on the copyright owner: Do they have a reputation for being difficult or litigious? Is your use the kind of thing that’s likely to get under their skin or offend them in some way? How likely are they to learn about it?
Your own situation: Do you have the time and finances to request a license for peace of mind? Are you afraid of lawsuits, or does the chance for publicity excite you?
Resources you have at your disposal: Are there intellectual property attorneys in your network? What about nonprofits that might be a good source of support?

Fair Use Resources

If you’re looking for additional information on fair use, check out these links:

The Cyberlaw Guide to Protest Art: Copyright Part 2— Fair Use

Fair Use

Read More!

Written by Cyberlaw Clinic