Know Your Rights: How does fair use work?

Know Your Rights is Engadget's new technology law series, written by our own totally punk copyright attorney Nilay Patel. In it we'll try to answer some fundamental tech-law questions to help you stay out of trouble in this brave new world. Disclaimer: Although this post was written by an attorney, it is not meant as legal advice or analysis and should not be taken as such.

Why're you doing a KYR on fair use? It's all right there in the name, isn't it?

If only it were that simple. Like so many other legal terms, the hardest thing about understanding fair use isn't how it works, but rather that it has such an appealingly simple name -- one that seems to invite a lot of off-the-cuff interpretation.

Well, that's stupid. Why not just make it simple?

Because then lawyers would be out of their jobs, obviously.

That can't be the reason.

Yes, but it's much funnier than the real one.

Try me.

Well, even though it occasionally seems like it, judges and juries don't just get to do things as they see fit -- they have at least try and build upon the foundation of the existing law. Law works a lot like code in that way -- there's a reason it's called the United States Code. So the words "fair use" are really just a pointer to a specific section of the Copyright Act and the case law that's developed around it. While that might seem needlessly complicated, it means that the legal system is at least trying to enforce a consistent, rational definition of a word like "fair," which means different things to different people.

That's great, but what does that have to do with me? I just want to post photos on my blog, or rip CDs.

Well, although there are certain specific things, like criticism, parody, and teaching, that are specifically protected as fair use, it's not a blanket protection against copyright infringement actions -- courts evaluate fair use on a case-by-case basis. So even though you may think that your sweet parody of "Gimme More" is covered by fair use, you can't just ignore a letter from Britney's lawyers -- you have to show how your specific use was fair under the rules.

So what are the rules?

It's a little more complicated than this, but there are four basic things people talk about when deciding if a use is "fair":

  • The "purpose and character" of the use: Are you straight-up selling photos you found on Flickr? Or are you just reposting them and commenting on them?

  • The nature of the original work: Are you just reciting facts from a non-fiction book? Or are you posting all the CGI scenes from Transformers?

  • The "amount and substantiality" of the original work you're using: Are you taking the whole photo? The most important part of the book? Or just quoting a from a scene?

  • The effect on the market value of the original work: Is your use killing the value of the original? How so, and how much?

That seems complicated, but understandable.

Ah, but remember, law is code -- each of those four rules is a pointer to decades of case law teasing out exactly what does and doesn't cross the line, and how the rules work together. Just mentioning that you think your use falls under these rules doesn't mean that your use is fair.

So how am I supposed to know what's fair and what's not?

Well, just keep it simple, think about the rules, and use your common sense. Are you reviewing something? You're probably fine to use a small piece of whatever you're reviewing, but not the whole thing. Are you making a parody? You can probably use as much of the original as it takes to establish what you're doing. On the other hand, just lifting other people's photos for your blog and claiming your use is fair just because you provided attribution probably isn't going to pass muster.

I thought you said you couldn't just figure it out from the words "fair use."


Freakin' lawyers.

Like I said, we've got to stay in business somehow -- and showing fair use in a court setting is a lot different than just screaming "FAIR USE!!!!!!1111" on a message board. But in the end, copyright law and fair use aren't any different than all the other laws that impact your life: if you're respectful of other people's works and aware of the rules, chances are you're going to be fine.

Sweet. Can I repost this whole thing on my blog?

Only in rap parody form -- anything else gets the hammer.

Want to know more? Check out these two great guides to fair use on the web:

Read -- Stanford's excellent fair use site
Read -- The Fair Use Network