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Fair Use Doctrine - Top 10 Misconceptions

Introduction

If you plan on using another’s copyrighted work, you’ll surely want to know the laws before doing so. Otherwise, you may be in violation of federal statutes, with penalties of up to $150,000 per violation.

In this article, we’ll discuss 10 of the most common misconceptions about the "fair use" doctrine under copyright laws. In short, copyrighted works protect the owner from another’s use of that work without the owner’s consent. Copyright laws give the owner of a work, such as a book, movie, article, drawing, etc. a lot of protections. However, there are certain exceptions where others can use a copyrighted work without the owner’s consent.

One of the biggest exceptions is called the "fair use" doctrine. If the use of a work falls under the "fair use" doctrine, others can use that work without the owner’s consent. But you’ll have to be cautious when using the fair use doctrine or you may commit copyright infringement.

Next, we’ll go over fair use misconceptions 1 through 3.

Fair Use Misconceptions 1 – 3

Misconception 1 – The Lack of a Copyright Notice Means You Can Freely Use the Work

The lack of a copyright notice on a work does not necessarily mean you can freely use that work. While certain older works may have needed copyright notices to protect them, works today do not need copyright notices for them to be protected. What’s a copyright notice?

A copyright notice generally includes:

a copyright symbol "©," or the word "Copyright"
the date the work was copyrighted, i.e. created, and
the owner of the copyright.

For example, this article is protected by copyright with the notice, © 2009 ThinkingLegal, LLC. However, even if this notice was not put on this article, it would still be protected by copyright law (but make it more difficult to prove). That means others that wished to use this article would have to abide by copyright rules, but still may be able to use the article under the fair use doctrine.

So, if you read or see a work, such as an article on the internet, that does not contain a copyright notice, you may still have to abide by copyright rules depending on the work. The owner of the work may have just failed to place a copyright notice on the work. Other works, however, might fall into the public domain. Works in the public domain can be freely used because they are no longer protected by copyright law.

Misconception 2 – If a Work is Copyrighted, There Can Be No Fair Use of that Work.

Fair use only applies to copyrighted material. In other words, if a work is not copyrighted, like if a work is in the public domain, then fair use does not apply. You can freely use public domain works without the original owner’s consent.

Remember, fair use is a defense to the use of copyrighted materials – the work must actually be copyrighted for the fair use doctrine to even apply.

Misconception 3 – If Something Seems Like "Fair Use" to You, a Court Will Also View it as Fair Use

Fair use is not necessarily determined by what you believe to be fair use. Instead, a court will view at least the 4 factors under Title 17, Section 107 of the U.S. Code to determine what constitutes fair use. (These 4 factors are discussed under the article "Fair Use Doctrine.") In other words, a court may come to a different conclusion than you in what is considered "fair use." So, it is generally better to error on the side of caution when evaluating whether a use would be fair or involve copyright infringement.

Next, we’ll go fair use misconceptions 4 through 6.

Fair Use Misconceptions 4 – 6

Misconception 4 – If I Use a Work that Falls Under the "Fair Use" Doctrine, I Cannot be Sued

If you use a work that clearly falls within the "fair use" doctrine that does not mean you are free from a lawsuit. The owner of the copyrighted work could still threaten to or even sue you for your use of the copyrighted work – even if the use falls under the "fair use" doctrine. Why? Because the owner might not feel that your use was "fair," and may want a judge or jury to decide whether your use falls under the fair use doctrine.

If you’re sued, you’ll have to defend yourself – and that could get costly in hiring a lawyer. So, it’s generally better to consult with a lawyer prior to using copyrighted materials under the fair use doctrine. That way you should likely have a better chance of avoiding a potential lawsuit.

Misconception 5 – Plagiarism and Copyright Infringement are Basically the Same Legal Concept

Plagiarism and copyright infringement are not the same concept. Plagiarism is based on ethical standards, while copyright infringement is based in law. Plagiarism occurs when a person uses someone’s ideas, words, creations, etc. without citing the owner of the work. We’ve all learned in school that plagiarism is wrong and students can face some steep penalties for plagiarizing someone else’s works. However, copyright infringement is different than plagiarism.

If you plagiarize a work, it does not necessarily mean you’ve committed copyright infringement. Conversely, if you commit copyright infringement, it does not necessarily mean you’ve committed plagiarism.

For example, if you quote a line from a book and cite the reference, you have not plagiarized the work but you may have committed copyright infringement. On the other hand, if you quote a line from a book and do not cite the reference, you have plagiarized the work but you might not have committed copyright infringement. In other words, the analysis for plagiarism and copyright infringement are 2 different analyses.

Misconception 6 – If You Own a Copyrighted Work, You Can Stop Others from Ever Using That Work

Even if you are the sole and exclusive owner of a copyrighted work, you cannot necessarily stop everyone else from using your work without your permission. Others may legally be able to use your work under limited circumstances such as within the "fair use" doctrine (or other exceptions).

Remember, that while ownership in a copyrighted work is generally very powerful, there are situations where others may legally be able to use your work without your consent – like under the "fair use" doctrine, which is the focus of this article.

Next, we’ll go over fair use misconceptions 7 through 9.

Fair Use Misconceptions 7 – 9

Misconception 7 – As Long As I Don’t Use the Copyrighted Work for Profit, It’s Fair Use

Not necessarily. If you use another’s copyrighted work and make no money off of it, you may still have committed copyright infringement. For starters, a judge would want to know whether you intended to make money off the copyrighted work. If you intended to make money, but failed to do so, the judge may be more likely to find that you committed copyright infringement. If you did not intend to make money and, in fact, did not make money off the copyrighted work, a judge may be more inclined to find fair use of the work. Still, whether you profit from a copyrighted work is just one factor in determining whether you’ve committed copyright infringement.

As another example, if you let the general public use a copyrighted material for free that would have otherwise cost money (e.g. to purchase from the copyright owner), you’ve essentially stolen money from what the copyright owner could have made. A judge would likely count this against you and be more willing to find copyright infringement.

Misconception 8 – The Less Words You Quote, the More "Fair" the Use

Sometimes this is true, but not always. Often people think that if they only quote a small number of words, e.g. 40 words, then the quote automatically constitutes fair use. While this may be true under many circumstances, there are other circumstances where this is not true. For example, if you quoted 15 words from a 40 word poem, you may have committed copyright infringement. In contrast, if you quoted 15 words from an 180,000 word novel, it would more likely be considered fair use – depending on how you used those words and the importance of the quote.

So, keep in mind that just because you use fewer words in a copyrighted work, that does not necessarily mean you’d be protected under the fair use doctrine.

Misconception 9 – Once Fair Use is Determined You’re Free to Keep Using the Work under the Fair Use Doctrine

Fair use is not a static concept. In other words, the definition of what constitutes fair use changes with time and circumstances. That’s because if you’re using a work under the fair use doctrine today, that same use of the work at a later time might not still be considered fair use.

For example, assume you quote a small excerpt from a movie that’s considered fair use today. Then, a year later that movie becomes very famous. Everyone knows that movie and people start buying all kinds of souvenirs, including shirts with the quote you used. Now, there’s a good likelihood that you could not use that quote under the fair use doctrine, and may be committing copyright infringement.

So, just remember that the definition of fair use does not remain constant.

Next, we’ll go over the 10th fair use misconception.

Fair Use Misconception 10

Misconception 10 – If Fair Use applies in the United States, It Also Applies in Other Countries

Often, no! We’ve been talking about "fair use" as defined under federal copyright laws in the United States. Each country sets its own copyright laws, and the exceptions to using a copyrighted work without the owner’s concept, such as the fair use doctrine.

Some countries do not have a fair use doctrine. Some countries have a fair use doctrine, but call it by a different name and have different ways of interpreting it.

So, if you want to use a copyrighted work in another country, you should likely seek a lawyer to assist you because each country has its own laws.

Finally, we’ll wrap up this article with some main points to keep in mind.

Conclusion

In this article, we discussed 10 of the most common misconceptions concerning the fair use doctrine with copyrighted works. Now, you should have a better understanding of what fair use means and how to avoid copyright infringement. Also, remember that fair use is just one exception in using a copyrighted work without the owner’s consent (i.e. there may be other exceptions).

As you can likely see, what constitutes fair use is not an exact science. What you consider to be fair use might not be fair use in the eyes of the law. So, if you’re going to use copyrighted materials make sure that you can answer how, why, and how long you plan to use the copyrighted material(s). If you even question whether the use would be considered "fair use," you may want to seek the advice of a lawyer.

Finally, if you haven’t read the "Fair Use Doctrine" article, we advise you to take a look at it for further details on this topic.