Under US Copyright Law, copyright protection automatically applies to original works of authorship fixed in a tangible medium of expression.
However, Section 107 of the Law grants the fair use of copyrighted work, which is not considered a copyright infringement.
In this article, we explain what fair use is, when it applies, and how you can write a fair use disclaimer.
When we talk about copyright, we refer to the exclusive right of the creator of an original work – be it a photograph, a song, a video, an artwork, etc. – to use it.
However, the Copyright Law of the United States allows an exception, that is, fair use.
According to Section 107, people may use copyrighted content for, among others, the following reasons:
The above uses are generally not considered copyright infringement, but this doesn’t mean that you can just copy the work of another person and profit from it. In fact, there are four factors to consider when determining fair use.
When determining if the use of copyrighted work can be considered fair use, judges use four parameters, which are outlined in Section 107:
Let’s examine them one by one.
The first thing that is observed is the purpose of the use. Is it for a commercial purpose or without the goal of generating profit? Does it fall in the specified purposes for fair use(criticism, comment, news reporting, teaching, scholarship, or research)?
In general, non-profit uses are more likely to be considered fair, but this is not a rule. It depends on the circumstances.
Moreover, if you add something new and contribute to the public discourse with a “transformative” approach, you have greater chances of falling into fair use.
“Transformative use” means that the new work adds new expression, meaning, or message to the original copyrighted material, rather than merely copying it.
The second factor is the nature of the copyrighted work. Is it factual or creative work?
Courts are more likely to grant fair use if a factual copyrighted work was used, such as a biography, a news article, or research. On the other hand, copyright is applied more strictly when a creative work is involved, such as a novel, a movie, or a song.
The published or unpublished nature of the work may also influence the decision. Copyright applies even if the work hasn’t been published yet.
This factor analyzes both the quantity and quality of the copyrighted work that was used. There is no guide that tells you exactly how much of a copyrighted work you can use, but it depends on the circumstances.
Overall, an extensive use of a copyrighted work is less likely to be considered fair use. You should limit your use to what is necessary to fulfill your purpose or convey your message.
This factor analyzes how the use of the copyrighted work impacts the existing or future market of the copyright owner.
Of course, courts tend to favor the copyright owner, since the widespread use of a protected work can harm their revenue or potential revenue.
A fair use disclaimer is a statement that communicates that you are using a copyrighted work on the basis of fair use, and you are aware of the limitations that apply. It also specifies that you do not own the copyrighted work you’re reporting.
It’s very common on websites that have an educational purpose, YouTube videos, articles and reviews, and more.
We have a guide just for that! 👉 Check here
When you write a fair use disclaimer, you need to include a few important points:
Here’s how these elements come together:
The material used in this article is being used under the fair use provisions of copyright law. The content is being used for educational purposes only. All rights to the original content are held by their respective copyright owners. We do not claim ownership of any copyrighted material used.
Fair use isn’t a blanket permission to use copyrighted content however you like. A fair use disclaimer is not enough if you’re using copyrighted material in the wrong way.
Like we said above, fair use only applies in specific, limited situations. If your use doesn’t clearly meet those criteria, it’s safer to use copyright-free content or properly licensed material. Simply giving credit or adding a disclaimer doesn’t make it fair use.
Now let’s take a look at some fair use disclaimer examples, to see how this disclaimer is used.
The Louisiana Office of Student Financial Assistance (LOSFA) added a fair use statement on its website, to make clear that the copyrighted content is for educational purposes only.
The same did the Fort Worth Garden Club, which stated that the pictures used on the website are for educational and entertainment purposes.
Want to learn more about copyright and the use of disclaimers? Read also:
👉 What is a copyright disclaimer and how to write it
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