Demystifying the Fair Use Doctrine: The Ultimate Checklist for the Copyright Defense


You would be difficult-pressed to uncover a person that appreciates a fantastic list as a great deal as I do. I enjoy lists as a great deal as Scully loved de-bunking Mulder’s paranormal findings and alien conspiracies. Whether or not it be to-do lists, Christmas lists, bucket lists, or pro and con lists (you get the concept), I fancy them all.

Lists are especially valuable when attempting to keep in mind essential data and make complicated choices. It is no wonder that a checklist can be valuable  in figuring out no matter if a use of copyrighted material is probably inside the limits of “fair use” beneath U.S. copyright law a legal idea that has only grown murkier in the digital age exactly where millions of persons each and every day are generating or employing copyrighted function. Let me clarify.

Copyright law protects “original functions of authorship,” which includes photographs, music, videos, and blogs uploaded on social media platforms. A individual who creates an original function is promptly the copyright holder of the function.

Copyright holders have various exclusive rights, which includes the rights to reproduce, distribute, and publicly show their functions. Sharing or reposting a person’s copyrighted function on social media platforms could implicate a quantity of these exclusive rights, and frequently constitutes infringement unless a license or permission is obtained from the copyright holder or the use constitutes “fair use.”

The fair use doctrine, which was codified into law decades prior to a image or video ever went viral, permits the use or reproduction of copyrighted components “for purposes such as criticism, comment, news reporting, teaching (which includes various copies for classroom use), scholarship, or study.”

What falls inside the realm of fair use is case-certain and determined just after weighing 4 aspects to balance the interests of copyright holders in the manage and exploitation of their functions with the competing interests of the public in the totally free flow of concepts, data, and commerce. These aspects are:

(1) the Purpose and character of the use

(two) the Nature of the use

(three) the Amount and substantiality of the portion of the use and

(four) the Effect of the use on the prospective industry for the function.

If you have difficulty recalling these aspects, attempt employing the acrostic “Poodles Need Ample Entertainment” to commit them to memory.

The aspects are only suggestions. No single aspect is decisive of fair use. Clear as mud, suitable? Such lack of clarity arguably led to the prevalent sentiment on the net which is “you can post just about something as extended as you take it down when the [copyright] holder complains” as described by Harvard University Professor Louis Menand.

If you are like a lot of persons attempting to stroll the straight and narrow, you are nonetheless uncertain what these aspects imply virtually. This is exactly where a checklist ready by Columbia University Libraries Copyright Advisory Workplace Fair

Use can be a useful tool. It breaks down what is viewed as in each and every of the 4 aspects and aids you gauge no matter if a proposed use is probably to fall inside the realm of fair use or misuse.

It is not uncommon for elements of a certain use to fall in each the “favors fair use” column as properly as the “weighs against” fair use column, so you will want to take into account the relative persuasive strength of the situations. Also, there may perhaps be other considerations that are not accounted for on the checklist. The checklist can nonetheless assistance you make a affordable guess about no matter if a proposed use constitutes fair use or misuse to mitigate legal dangers.

Nevertheless not certain just after consulting the checklist? Verify out this great resource by Stanford University Libraries. And, maintain in thoughts that there are two sorts of scenarios that are extra probably to bring about legal troubles: (1) your function causes the copyright holder to shed cash (two) the copyright holder is offended by your use.


Photo by Claire Anderson on Unsplash


Latest posts