3 Reasons the Fair Use Doctrine is Not "Anything Goes"

The Fair Use Doctrine allows everyone to use copyrighted material!

But it's far from no holds barred.

Here's why.

1. Fair Use Has Qualifications

Not just anything is protected under the fair use doctrine. A work has to meet certain criteria before it's even considered to qualify as fair use. 

Here are the qualifications according to an article by Stanford University:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market

Each of these factors is defined in more detail in the above mentioned article. 

Commentary, criticism, and parody are three works that are often protected by Fair Use, according to Stanford. The AP Stylebook points out that "news reporting, criticism and comment are favored purposes under the fair-use doctrine." But even if your work fits into these categories, that is not always enough to protect you from a lawsuit.

2. Fair Use is Subjective - Copyright Holders May Disagree

You think you are being perfectly fair and following the criteria - but that doesn't mean a court of law will agree. For instance, look at these cases ruled NOT fair use according to another Stanford article:

"Not a fair use. A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin’s death. Important factors: The court felt that the portions taken were substantial and part of the “heart” of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982).)"

Photo by Rae Tian on Unsplash

"Not a fair use. Although the creation of a Harry Potter encyclopedia was determined to be 'slightly transformative' (because it made the Harry Potter terms and lexicons available in one volume), this transformative quality was not enough to justify a fair use defense. Important factors: An important factor in the court’s decision was the extensive verbatim use of text from the Harry Potter books. (Warner Bros. Entertainment, Inc. v. RDR Books, 575 F.Supp.2d 513 (S.D. N.Y. 2008).)"

3. Fair Use Still Requires Clear Respect of Copyright

As you can see, a court of law will want evidence that you didn't use too much of the copyrighted material and that you didn't try to pass it off as your own. That is why it may be best not to rely much on fair use. Just do your best to give attribution and not use another's work without permission. Be creative and try to make your work your own.

Use Fair Use Sparingly

Don't casually brush off copyright because of the fair use doctrine. Fair use is not a shield of invincibility against copyright law. Consider it more as a safety net than a free pass. Act like it's not there and hopefully you'll never need to use it in court.

3 Questions Answered: How to Respect Copyright

 The Good Wife TV characters use a search engine named "ChumHum" instead of Google (this was made into a real search engine).  On The Simpsons, YouTube is "MyTube." And if you've ever seen Chuck, everyone knows the store Chuck works at is Best Buy even though it's called "Buy More."

We know why they do this, right? Not only is it funny, it prevents TV companies from being sued. All those real world names are trademarked. And if a trademarked company feels they are being defamed, they can sue the pants off of anyone that uses their name.

Is it a bit ridiculous to go to these extremes to avoid a lawsuit? In a way. That's why we laugh about it. But when it comes down to legal brass tax, it's best not to risk it.

Being sued isn't fun.

1. If it Doesn't Say it's Copyrighted, is it Fair Game?

Always assume a work is copyrighted unless it specifically states that it is not.

Although there will often be some indication of copyright, in many countries there is no law requiring a copyright label for a work to be legally protected. You can still be sued for stealing someone's intellectual property, even if it is not labeled with a copyright.

Let me repeat that.

There is no law requiring legally protected work to be labeled as such

In other words, responsibility rests squarely on the borrower's shoulders, not the owner's.

2. Where Can I Find Material That is Not Copyrighted?

One thing you should find out to determine if a work is copyrighted is when the work was created. Often, older work has entered the public domain after 50 or so years, depending on the laws of your country.

Also, there are works that are labeled as "royalty free" or "creative commons." These works generally have no, or limited copyright so that they can be used by the public.

Is it okay to put makeup on the Mona Lisa? Yes - the Mona Lisa is old enough to be in the public domain.

Often, there will be an explanation provided by the owner describing copyright conditions. Sometimes, for instance, you can use material - but only if you also credit the person it belongs to. Other times, material is available and doesn't require credit at all.

If something is labeled as "royalty free" or "creative commons," look for copyright terms. Make sure you are respecting all requests of the owner.

Example of copyright conditions for use of a creative commons photo on flickr

3. Is There Any Way to Use Copyrighted Material Legally?
Absolutely, there is. One way is to simply ask permission. Get this permission in writing and make sure you understand the terms.

Another way is through the Fair Use doctrine. 

Let's go back to the discussion of made up TV businesses. Why am I able to use the real business names, whereas the TV shows had to disguise them in a silly way?

First of all, I can use the real names because I didn't use them in a potentially defamatory way. I did nothing that might offend these companies or make them look bad. I have simply stated that they exist and are trademarked - not too risky. And I'm not trying to make money off their brand either.

Also, I  am writing something that is informational. Informational work is often protected under the Fair Use doctrine. This means that a piece of copyrighted material may be used as a part of my own work as long as certain standards are met.

For example, you still couldn't go copying an entire article someone wrote and pass it off as your own claiming fair use. Respecting and crediting intellectual property is still required under fair use. Only use what you have to.

Fair use isn't set in stone. There's no line in the sand. The validity of fair use is left up to the subjective interpretation of the court. It must, therefore, be used with discretion. If you are sued, you will need to show that you took every necessary precaution to respect the original work and had no intent to steal.

Copyright is About Respecting Others

The most important thing in creating anything that uses other people's work is that you are being respectful. No one likes getting their ideas stolen, twisted, or misunderstood.

If you follow the rules as set out by others concerning their intellectual property and use it respectfully, giving proper credit, you're more likely to receive respect in return and less likely to be sued. Make it a point to respect intellectual property large and small, not just to avoid a lawsuit, but because it is a kind thing to do.

4 Reasons to Cite Sources - Even if it Seems Everyone Already Knows

This happens again and again on the news blog. I receive a fascinating article about events in a distant land, news I would never hear about by flipping on CNN. Yet, fascinating as it is, there are no sources cited, and it seems unlikely that the information was obtained through a personal interview.

So I ask for sources. "It's all over the news," comes the reply, "obviously, that's where I heard it." This is enough to absolve writers of the need to cite anything? -- WRONG!

The story may have been so widely covered that you can't even remember where you got all the information jostling around in your head. So it seems perfectly legal and good to pull it out of a file in your own brain. It's your own experience that taught you these things. Or so it may seem. Check here to learn more about copyright.

But even if this were true, even barring copyright issues, it's not good practice to leave out citations. These are some reasons why it is still important to cite sources that you pull from memory:

1. Not Everyone Has Heard It

Just because it's not news to you, doesn't mean it's not news to someone else across the globe. When you're dealing with the Worldwide Web, it doesn't matter if everyone where you live has heard it. It's not common knowledge across the globe. People want to know where you get your information.

2. You Could be Wrong

We all hear gossip and see an influx of information fly across our news feeds daily, hourly, by the minute. We even call ourselves the "information age." All of this may make us feel well informed. But...Are we? Have you ever seen anything online you thought to be true, only to find out later it was not? Or have you ever misremembered something you thought for sure was true?

If you are writing strictly out of hearsay, who's to say you didn't get something wrong?  Citing sources helps you fact check yourself. Which leads me to my next point.

3. Readers Will Trust You More

In this age of false information being passed around social media, source checking is vital if you want credibility as a writer. Even if you have the memory of an elephant, and supposedly don't need to look at sources, the easier you make it to fact check your writing, the more accurate you're likely to be, and the more you can be trusted.

4. Google's SEO Algorithms Will Trust You More

Do you want people to read your article? Then you will need to gain the trust, not only of your readership, but of search engines. One thing that the Google search engine loves is authority. 

Who are you to say such and such has happened?

 Google doesn't know. Google is a robot. What Google does know is that some sites get a lot of traffic and are therefore trusted. If you link to trusted websites, Google will be more likely to trust you and your article will be more likely to be viewed, picked up, and maybe even make the top of Google search results! How's that for a testament of your writing skill?

An Easy Thing that Goes a Long Way

Citing sources is easy online. All it takes is to copy and paste a hyperlink to the source. Even a mention of the source along with the hyperlink is nice sometimes. That way, readers can be extra clear on where the information is from. It is a small thing you can do but it makes you much more credible.

To My Writers and Friends

Recently, I have been approached by friends who wanted advice on writing. At the same time, I've begun editing a small independent, world news and cross-cultural site, the Komorebi Post, where I review the work of nearly 20 writers as well as write my own content.

Many of these writers have a lot of important things to say even though they may speak English as a second language or have not been formally trained with advanced writing degrees.

Unintentionally, I have ended up writing a lot about, well, writing. I send emails, I answer friend's questions. I give advice.

So, I have decided to put my writing together in one spot. That way, as I learn and grow, I can join with my friends and fellow writers as we sharpen our skills together.

On this blog, Writer Well, I will try to address some basic writing issues such as how to avoid plagiarism, how to make an argument rather than give an opinion, and other things that writers grapple with.

I will explore what I'm learning on my own writing and blogging journey, as well as what I've learned in the past through personal experience.

I hope that I will help writers as we take this journey together.