Fair Use 101
Written By: Jonathan Bailey,
Author Plagairism Today [link]
Copyright law gives artists a set of very crucial set of rights over
their creations. Copyright law allows only the artist to reproduce,
publicly display/perform or make derivative works from an original
However, those rights are limited, Copyright law recognized some time
ago that copyright law could be used as a stick to prevent stifle free
speech or otherwise hinder the public good. Thus, copyright law saw
the need to balance the rights of copyright holders and the needs of
public through limitations on the rights copyright holders receive.
Those exemptions were first handed down through a series of judgments
but were finally codified into the law in the Copyright Act of 1976.
It is important, when pursuing art rips and other copyright
infringements, to be aware of fair use and to respect these rights.
Not only can ignoring fair use issues raise severe legal issues, but
can also distract from more important cases and turn people who would
otherwise be supporters against the cause.
Being mindful and aware of fair use is critical to any attempt to stop
What is Fair Use?
As stated above, fair use is an attempt to balance the rights of
copyright holders with the needs of the general public. It is a set of
exceptions, under which, one may use copyrighted material without the
permission of the rightsholder, and not be found to have infringed the
copyright in question.
Unfortunately, there is no "hard and fast" rule for determining
whether or not a use might be considered "fair". Fair use has to be
decided by a judge or jury and is only used as a defense in a
copyright infringement suit. One can only look at the use of a work,
compare it to the factors that a judge would use to determine if the
use is fair and, then, make a guess.
This is even an area where lawyers have to guess on. Since decisions
range wildly between court to court and circuit to circuit, there is
little guarantee how a judge will react should a a case be in the gray
Still, it is important to at least attempt an evaluation so that you
can avoid stifling legitimate speech and shutting down a reuse of your
work that constitutes a clear, or at least as clear as possible, case
of fair use.
The Four Factors
To aid in determining whether a use is to be considered "fair" the law
set down four factors that can be used to make, at the very least, an
The four factors are as follows:
1. the purpose and character of the use, including whether such use is
of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. 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
The first factor deals with the nature of the use. Fair use strongly
favors educational, news reporting, commentary and criticism over
commercial use. It also deals, at least in part, with how
transformative the use is, meaning is the use designed to replace the
original or is a new work created.
The second factor deals with the original work itself. Fictional works
get more protection than non-fictional ones and unpublished works get
more protection than published ones. Also, works that are derivatives
of other works, say public domain material, are given less protection
than ones that are completely original.
The third factor looks at the quantity used, both in terms of how much
of the original work was used and how much the reuse comprises of the
new work. For example, using a quote from a book in a movie would be
much more likely to be considered fair than turning the story of a
book into a movie.
The fourth and final factor looks at the effect of the reuse on the
market for the original work. Since some reuse, such as quoting for a
review, providing a thumbnail in an image search or showing a movie
clip on a preview channel will have only a minimal negative impact, or
might even improve, the market for a work, the amount and direction of
that impact is weighed in.
It is important to note that the market is judged as the potential
market for a work, not the market it is available in. If you make wood
carvings of a photograph for sale, you can not say that you didn't
hurt the market for the photograph because they were only selling
prints previously. The use damaged the potential market of wood
carvings and that is adequate.
Overall, it is important to remember that no one factor determines
whether a use is fair and that, it is based upon a combination of the
four factors. Though the first and fourth factor typically carry the
most weight, all have a role to play.
What This Means for RATF
Though we can not determine definitively is a case is fair use or not
until a judge has ruled on it, we can look at past rulings and see
what courts have decided in the past.
In recent court cases, such as Kelly v. Arriba and Perfect 10 v.
Google, the courts have generally found that the displaying of
thumbnails, such as with image search engines, is generally considered
fair use, especially if the use of the thumbnail provides criticism or
commentary on the original work.
However, the issue of displaying the full sized image out of context
of the rest of the site is still hotly debated and is very likely not
fair use. It is by far safer to link the thumbnails to the original
This also doesn't mean that it's acceptable to copy and paste the full
image into their site, either for display or download. Displaying the
original full-sized image out of context might have fair use
protection, but use of the full-sized one, or fairly close to it, in
the site likely does not.
Obviously. with thumbnails, the size of the thumbnail will play a big
role in determining the likelihood of the use being fair. Though a
thumbnail the size of what we see in Google Image Search is almost
certainly fair, the larger the thumbnail goes, the more questions that
are raised and the more other factors have to be considered.
Similarly, using a very small portion of a work for a collage or much
larger work is very likely fair use. Though using a critical element
of the piece or a significant portion is likely not.
The bottom line is that, if a site is only using a small portion of
your work, either as a thumbnail or just a very small section of the
image, especailly for commentary/criticism of your work, for example,
to write a review about it or offer opinions, there is a good chance
that the use is fair and it is important to consider the likelihood of
fair use before taking action.
Help is on the Way
Since fair use is such a difficult area of the law, several people
have created guides and tools for determining the likelihood that a
use is fair.
One such tool is the Fair Use Visualizer on Benedict.com[link]
Simply by moving the sliders around and looking at the bar up top, You
can see the approximate likelihood that the use is fair.
Though it is a little intimidating at first, simply move the slider
approximately where would be in relation between the two options. For
example, a 100% commercial use would be one for sale where a 100%
non-profit might be an education al use.
If you want to see an example as it relates to thumbnails, visit his
page on the Keilly v. Arriba case.[link]
Fair use issues should not come up very regularly in art theft cases.
Most art theft involves the reuse of either full-size or nearly
full-sized images on Web sites or blogs. That, for the most part, is
not acceptable under fair use.
The most common fair use cases you are likely to face are ones where
the user is providing commentary or criticism of the work or using a
small portion to build a much larger work. In all of these cases, the
use will be properly attributed, or at least should be, and the user
should be acknowledging and linking to their sources.
Still, it is important to keep an eye open for these cases and realize
that, even if you say that someone can't do it, the law might still
allow way. These are rights promised the public by the law itself.
These might not be popular rights to discuss or mention in this group,
which I understand, but they are important as stifling them can have
It is very important to make a good faith attempt to follow the law
and respect fair use. That is the best protection you can have to
avoid problems from obstructing these rights, both legal and
USCO on Fair Use: [link]We are working as hard and as fast as possible to deal with all the information coming in.
We are swamped and apologize - respond times to comments/questions may be slow.
We are not perfect – note us if there is an oversight…it is not intentional.
Comments left on the RATF site by others - are THEIR opinions – not necessarily ours.
We need volunteers who will uphold the volunteer code of ethics.
We WILL NOT tolerate unprofessional conduct or illegal or unorthodox methods… period.
This is not a vigilante task force.
We simply want to help people with their art theft and copyright issues.
We are volunteers and do not deserve abuse, we are merely assisting you to resolve your rip issues!
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