This is the second in a series of posts about different types of rights that may be involved with models and files here at Shapeways. Today we’re going to go a bit deeper into one aspect of one of those rights: fair use of copyright-protected work.
Before we begin, a quick note. The posts in this series are written from a U.S. perspective. Most of them are written in a way that the general concepts will apply in many (if not most) other countries. That is probably the least true for an issue like fair use. While some other countries have similar concepts such as fair dealing, fair use tends to be a bit U.S. specific. As is the case for all of the posts in this series, it is always a good idea to talk to a lawyer about your specific case.
Generally speaking, if you want to make a copy of all or part of a work that is protected by copyright you need to get permission from the person who owns that copyright (often referred to as the “rightsholder”). But that is not always the case. Sometimes you can make copies without permission because the copies you are making are protected by a concept in U.S. copyright law known as fair use.
Fair use is an important, although slightly complicated, aspect of copyright law. Without fair use, a rightsholder could prevent a critic from quoting part of a work in a critical review, stop a news report from showing a clip of a controversial video, or interfere with fans reimagining characters from a favorite work of fiction. Fundamentally, fair use is designed to make sure that copyright does not get in the way of free speech.
Applying that fundamental principle to any specific situation can be a bit complicated. Fortunately, there are a number of great guides out there to try and help, from the Fair Use App from New Media Rights, to a massive collection of best practice guides from the Center for Media & Social Impact at American University, and Stanford University’s Copyright and Fair Use Center (just to name a few). All of these resources build on the four elements that courts are supposed to consider in determining if a use is a fair use. These are written into U.S. copyright law. Remember that these factors are weighed against each other, and that no single factor can determine if fair use applies.
1. The purpose and character of the use, including whether the use in question is commercial in nature or nonprofit and educational;
This element looks at how a work protected by copyright is going to be used by someone else. Generally speaking, uses that are noncommercial, critical, and/or educational will fare well in this element. However, there are still plenty of commercial uses of copyright-protected works that can be protected by fair use (watch pretty much any segment on the Daily Show for an example).
2. The nature of the work being copied;
If the first element looks at the copy, this element looks at the work being copied and recognizes that some types of works are more likely to trigger fair use protection. For example, a speech given by a political candidate is generally riper to be reproduced under the protection of fair use than a commercial television show. Again, however, that general rule does not mean that commercial television shows are exempt from being remixed under fair use.
3. The amount and substantiality of the portion of the copied work that is used; and
Contrary to what you may have read elsewhere, there is no “rule of thumb” for fair use, where as long as you use below X percent of a work of less than Y seconds of a clip you are protected. This element looks at the amount of the source work that is used in the context of the new use in question. It can be thought of as a rule of “take only what you need.” Sometimes that is only a few words. Other times it can be that the entire source work is needed to achieve the new use.
4. The impact that the copy has on the potential market value of the copied work.
This final element looks at how the new use impacts the source work economically. If the new use directly competes with the original work in the marketplace, it may undermine its case for fair use.
When judges are trying to decide if a use is a fair use, they weigh the facts against all of these elements. Importantly, these principles aren’t a straightforward checklist – sometimes fair use can be found when three of the principles cut against a finding of fair use but the fourth is particularly persuasive, and sometimes one or two of the principles do not even apply to the specific situation.
Where does this leave you? First and foremost, fair use is real. Not every use of a work protected by copyright requires permission, and fair use is like a muscle – the more it is used the stronger it gets. Second, rightsholders – even ones acting in good faith – don’t always consider fair use as thoroughly as they should (or at all). Don’t assume that just because you receive a copyright takedown notice that the rightsholder who sent that notice considered the fair use aspects of what you are doing.
That being said, fair use can be complicated. Simply saying that “no infringement is intended” or not being able to get a license from a rightsholder does not give you fair use protection. Neither does simply wanting to use a work. If you are going to claim fair use, make sure you understand the basics of how it works. Take a look at some of the guides mentioned above to get a better sense of how the rules apply to situations similar to yours. The exercise of coming up with answers for each of the four fair use elements can be incredibly helpful in understanding how fair use applies to a given situation. Consider discussing your specific case with an attorney who can focus on and identify any important details. This is doubly true if you are planning on asserting fair use in a formal legal context, such as a counternotice to a copyright takedown here at Shapeways.