As promised: Fair Use

When I was writing about copyright before, I ran out of steam before I talked about fair use. This was really terrible of me because talking about copyright but not fair use is like talking about hell but then not mentioning heaven. Well, maybe not that drastic but fair use is a very important exception to copyright law.... if you use someone's copyrighted work you'll burn for eternity EXCEPT if it meets the definition of fair use. Which is really complicated and open to interpretation, unfortunately.

Basically, the law (the Copyright Act of 1976, 17 U.S.C. § 107.) says that a use might count as fair use depending on

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

So, what does that mean? It means that if you're making posters of a photograph that someone else took & posted to their Flickr account, and selling them, it's not fair use (#1, because the use would be "of a commercial nature.") It means that if you are copying an entire blog post, and posting it on your blog, it's not fair use (#3, because the amount would be too much. You could quote a couple of sentences and then add a link to the original post). And if you are taking material from behind a paywall and posting it where people can access it for free, it's not fair use (#4, because it means the people who are trying to charge for their site will no longer be able to).

An example of fair use would be: a professor photocopies a chapter out of a book and posts it to their Blackboard for their students to read. This is generally seen as fair use because 1) it's for educational purposes 2) it's only a chapter, not the whole book or a substantial portion and 3) it is only on the Blackboard site, so it isn't affecting the ability of the author of the book to sell their book to other people by giving the book away for free.

Another example of fair use would be reading a book by a political figure you can't stand (I won't name any names) and quoting their book on your blog in a post about how terrible this person is and how wrong they are about everything. This is fair use because it's for purposes of criticism, which the law is fairly lenient about, because criticizing other people's ideas and having debates is part of democracy. You wouldn't be able to quote so much of the book that people felt that they don't have to go out & buy it because they had already read the good parts, though. That would break rule #4 by affecting the potential market for the book.

Unfortunately, the law doesn't give any clear definitions for how to interpret fair use. The examples I just gave were pretty clear cut, but there are TONS of gray areas in discussions of copyright. You just have to look at the four factors, decide whether you believe that your use meets these four qualifications, look at what judges have decided in the past about similar cases, and go from there. When in doubt, it is usually safer to not do it, and stick with options like linking to the text rather than publishing the text yourself, or using photos that you have paid for or acquired permission to use.