Common Myths About “Fair Use”

Members of the general public hold many myths and misconceptions about what constitutes copyright infringement and fair use. Below are some commons myths about “fair use” with brief explanations of the actual rules.

1.  I found the work on the internet (for example, a video on You-Tube, music from iTunes, photos from Getty Images), so it’s in the public domain and I can use it without getting permission.

How a work is displayed does not impact whether it is protected by copyright. Copyright protection is not lost simply because the work is posted on the web. Copyright laws apply to everything on the internet, unless in the public domain (see below) or created by U.S. government. Some content may be used pursuant to their terms and conditions. If the use is commercial, it may not be permitted. Carefully review the terms and conditions of the specific item and/or site to determine what use is permitted.

2.  The work does not have the © symbol, so it is not protected by copyright.

If the copyright symbol is not present, the work may still be protected and your use may be infringement. Since 1989, a copyright notice is not required to protect a work. Even absent the copyright symbol, the creator maintains all copyrights in her work. If the copyright symbol is not present on a work you would like to use, the best course of action is to contact the owner and request permission BEFORE you use the work. Otherwise, you risk a claim for copyright infringement.

The work also does not have to be registered in the Copyright Office to be protected. The owner of a work obtains a copyright simply by virtue of putting their creative expression in a tangible form – writing it down, photographing it, performing it, recording it, etc. Registration allows the owner to avail herself of certain statutory protections.

3.  I can use the work as long as I note who the author/owner is.

Giving “credit” does not render the use legal. That is an issue of attribution which tends to arise when there are claims of plagiarism, which is trying to pass off of another’s ideas, words, or work as one’s own. Copyright infringement, on the other hand, has to do with the unauthorized use the protected work, which could arise with or without attribution.

4.  I only used a paragraph from the novel or four bars of music from a song, so there’s no infringement.

Regardless of what you have heard, there is no bright line legal rule that stipulates what quantity of a work is okay to use without seeking permission. The analysis turns on the four statutory factors (see What is “Fair Use”?) including the portion used, its relation to the whole work, and the effect of the use on the potential market for the original work. See the Blurred Lines Verdict.

5.  We made a documentary, so we can use music and images without permission.

You need permission to use the images and music belonging to someone else. While there is a limited exception for parodies, that exception is narrowly construed. Remember that fair use is a defense to a law suit, not a safe harbor.

6.  We are a non-profit and can use anyone’s work without infringing their copyright.

Some people believe that if the purpose of the infringement is not for profit, then there is no infringement. This is not correct. Infringement does not turn on the status of the user but rather the nature of the work, how it is being used, and whether the new use adversely affects the value of the original work. For example, if a non-profit charity uses a copyrighted character in its donation drive and mailings, the charity may be liable for infringement. Use by a non-profit can undermine the value of a copyrighted work, so non-profit organizations are not immune from claims of copyright infringement.

7.  If I paraphrase instead of using an exact quote, it’s okay because that’s not infringement.

Paraphrasing a quote will not defeat a claim of infringement. If the paraphrase is substantially similar to the original work, a claim for infringement may arise.

Circumstances when you do NOT need permission:

When the work is in the public domain. This is not always a simple matter to determine, but any work published before 1923 is generally in the public domain. Some works published after 1923 are also in the public domain.

When you are stating simple facts. Listing all the lakes and rivers in the US is a simple fact and is not protected by copyright.

When you link to something. Simply linking to a work, like an article on the internet, is not infringement.

When you only mention the title or author of a work. You do not need permission to mention the author or title of a work because that is a fact.

If we can answer any of your questions about fair use or other copyright issues, please do not hesitate to contact us.

Toni Y. Long, Esq.