This is Part 8 of our ‘Basics of IP’ blog series. You can find Parts 1, 2, 3, 4, 5, 6, and 7 here. The following has been adapted from “Is it Fair Use or Infringement?”, a Michelson IP animated short.
Say you want to use someone else’s copyrighted photograph in your blog or Instagram post. Is that “Fair Use” or copyright infringement? The answer is, it depends on the nature of the use, and the purpose of the use.
The Fair Use provisions of the Copyright Act allow you to copy and use copyrighted material for specific purposes — including criticism, comment, news reporting, teaching, scholarship, or research — that serve the public interest as determined by four factors:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
Often, determining Fair Use is a no-brainer. If you’re writing a book review, you need to quote from the book in question in order to comment upon it. As a result, you have transformed the original copyrighted work into a new work in your book review.
Similarly, educational institutions can use photocopies of copyrighted work for students enrolled in a class, so long as the copying is limited to:
- A chapter from a book.
- An article from a periodical or newspaper.
- A short story, short essay or short poem, whether or not from a collective work.
- A chart, graph, diagram, drawing, or picture from a book, periodical, or newspaper.
What are the limitations of Fair Use?
There are limits to how much of a work can be copied for educational purposes. You also can’t use these photocopies as a substitute for required texts. In addition, you can’t charge for the photocopied work (except to recoup the costs of photocopying), and use of the copies by students cannot be mandatory.
In cases like these, Fair Use seems simple enough. They have served the public interest and have not harmed the market for the original work. In fact, book reviews and book excerpts often increase sales of the original work by publicizing them.
But sometimes Fair Use is harder to judge. In a major 1973 Supreme Court case, the justices decided that even though copying and distributing medical journal articles for free to nonprofit government research libraries reduced sales to the journals’ publishers, the benefit to the public outweighed the harm to their business.
Other Cases
There are also times when determining Fair Use is a real head-scratcher. Take the case of New York “appropriation artist” Richard Prince whose work consists of taking the work of others, modifying it in some way, and then selling it — often for hundreds of thousands of dollars. As you might imagine, he’s had several run-ins with copyright law in the past. In 2015, he was sued for adding a few emojis at the bottom of other people’s Instagram posts, taking screen-grabs, blowing them up in size, and then selling them for up to $100,000.
Does adding a few emojis to someone else’s Instagram post pass the “transformation” test required for Fair Use, or is the only transformation here one that turns the original poster’s creative work into Richard Prince’s profit? What do you think?
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Can I use copy right materials for a fundraiser or an event where there is fundraising?
Might it be permissible to use 2 to 4 min Youtube clips from television shows in a commercial education situation? Specifically I’m an English as second language tutor, and I’d like to use the clips to demonstrate how English is spoken conversationally in addition to being representative of some element of American culture.
My interest is music….Can I take Don McClean’s “American Pie” and change the words for a church musical? Can I simply use the chords to same song, but do it as a narration without melody? How about “Kiss of Fire” (Louis Armstrong-circa 1949)…Can I use this melody if the words are changed to the Biblical story of Esther? Both of these works are intended for publication
Hi Steve,
Thanks for your comment/question. One question I would ask is are you planning on selling the song or publishing it on a monetized platform? You can create anything if it intended for fair use without seeking permission but publication can make this more complicated. Please refer to resources at our partners at the Copyright Alliance for more info. They have a great resource for finding copyright owners as well: https://copyrightalliance.org/resources/find-a-copyright-ownercreator/
– The Michelson IP Team
can i use the title “stranger things” as a title of a play which is a completely original story line. do i come under infringement laws or am i under ‘free use’ and transition?
Hi Louie,
Thanks for your comment/question. There is a high likelihood that the title “Stranger Things”, due to its’ immense popularity and branding, has been trademarked and copyrighted. If you plan to publish and utilize the work in public in a commercial manner (for profit), I would proceed with caution. I would also do a trademark search to be sure and a copyright search as well. Hope this helps! – The Michelson IP Team
Could I sample copyrighted music if I don’t intend to monotize my work? For instance, I compose a song in which there are short- 2 or 3 second samples- from various other songs that are copyrighted; I then upload the song I composed to YouTube, SoundCloud and other platforms- totally demonetized; intended on never generating a single cent in revenue by sale of the song I composed- would this be infringement, fair use, or something else entirely??
Hello,
Thanks for reaching out. It sounds like you might be in the clear but I would consult with our partners at New Media Rights using their free Fair Use App to determine where you might stand: https://www.newmediarights.org/fairuse/
Hope that helps!
– The Michelson IP Team
Can I quote from a book in a personal letter I’m writing to someone or is that copyright violation?
Hi Irene,
Thanks for reaching out. Yes, you can certainly quote another creative work in a personal letter. A violation usually would mean that you intend to profit from the personal letter in some or fashion. But that does not seem like the case here.
Kindly,
MIIP Team
Good afternoon! I am a PreK teacher, and I have a presentation about a wordless math book I successfully use with my students. A university in my town invited me to present for teachers and college students. How many copies of the book I can use on the Power Point presentation and how many xerox copies I am allowed to make for one interactive activity with my audience? Thank you very much!
Thank you – very well written and informative? My comment involves Youtube videos, especially educational ones. They appear to have no trade mark or copyright notices. Many have a “clip” icon which allows you to save all or a portion of the video. Would one be permitted to use a clip or a screen grab of a particular frame in an instruction manual outlining a procedure to clear drains? The manual would accompany products sold to help remove obstacles that clog drains.
Thank you for this educational piece on intellectual property. Very helpful!
Hello,
I am working on a book that will be self-published and realized the title I wanted is the name of a small podcast. Am I still allowed to use the name for my book?
Hi. I am self-producing an album of original songs and have written a spoken introduction for one of the songs in the style of an old Steve Martin sketch. I don’t actually copy any of Martin’s words except maybe the word “Excuse me”, but I cannot find that Martin has copywriter that phrase. Can you let me know if this is fair use? The song is about the US mental health crisis potentially causing a national great depression. It is educational and funny at the same time. Here is the intro: [Very seriously] I know the songs we’re playing tonight are all novelty songs and it’s been a lot of fun. But for this next song we wanted to try a little departure for us, and it was partly inspired by my all-time favorite stand up comedian, Mr. Steve Garvey…MARTIN, I meant Steve Martin dammit. Was Steve Garvey a hockey player or something? I must have had a card of him. Are we still recording this? We are? Crap and excuse me [not said in Martin’s style]. It was Mr. Steve Martin who once famously said, and I never forgot this, he said “You can always…” No wait… it’s “You just can’t sing a depressing song when you’re playing the banjo.” Well , we listened to “Learn with Gern”, then tried and gave up. Here’s a song called “The Next Great Depression”.
Thank you!
Hello, I’m not sure if you are responding yet to this post. I work in a public library as the teen librarian. We just got a new button (pin) maker. Can my teens print favorite anime characters/art/images of musicians/art found online to make their pins? This would be set up in a maker space setting or would be used in an anime club meeting environment.
Thank you for your help!
Hi Jennifer,
Thanks for asking your question. As long as they are not being sold for profit your students should be fine to create them!
I’m curious. What if I want to use a line from a book to illustrate a point- in a sales training presentation – used to train sales people selling products to the public. This line may be repeated by them to potential
customers to make their point. For example (I know it is public domain, but say it wasn’t) and my lecture / training included saying your customers will be feeling like The Scarecrow in The Wizard of Oz, and singing “If I only Had A Brain.” Or maybe as an example, if the trainer said- “Look the reason why your customers all say no they don’t want to talk to you is because they all feel that they have already decided they are not interested! They are all pretty much like “No, I do not like Green Eggs and Ham, I do not like them Sam I Am” when it comes to your product!” – and so maybe a sales person says something similar to their customers. Infringement or some kind of fair use or permissible use?
I am a member of a group of about 10,000 poets and growing on Facebook. The administrators of the site are contemplating creating a book with some of the best poems. I know that some of these poems are under copywrite and was wondering what the restrictions would be on this site to publish a book of poetry if some of the poems are under copywrite? Can it be done if they just recoup the cost of publication. I assume it cannot be for profit but would like your determination on that. Most poems are small. I would say less than 1000 words. Can they publish this type of book? Also, the members spread around the world.
This may be a dumb question, but does providing a link to someone else’s publication constitute “use”? Every reference to fair use that I’ve found seems to involve copying or quoting someone else’s content. It would seem to me that providing a link would benefit the publication linked to, more than the person doing the linking.
My students are creating Google Earth projects and including videos and photos from locations around the world. These projects are only shared in classrooms and just for educational purposes (to learn geography and culture). We include the sources of all the content at the end. Is this fair use?
Can I make a learning manual and copy right it for a teaching class with information that is universal for the subject?
Hi – I thought I was purchasing artwork from Vista Logos. They talked me into getting the logo copywritten. I am a very small business. I purchased the artwork, so I “thought” for $199.00. They talked me into getting the logo copywritten. $250 to apply. Called me back in 4 months, oh congratulations, your copywrite has been accepted. Mind you I have no paperwork., just the invoices and artwork. Called me back and said, now that it’s accepted another $500 to file. Right there I told them no, I did not pay the money. Then yesterday they call me and said I need to take it down, some random company in NC has the same logo, that Vista created and sold me. I paid $600 yesterday, when they informed me they were going to sue if I didn’t pay the money. I feel they scammed me. Whey do you think?
I work for an engineering company. The department at our company has purchased published articles over the last 20 years that are scattered throughout the department on everyone’s computer or in their personal file cabinets. Can I have everyone print out the copies that were purchased by the company (or take the ones they already have printed out) and put them in a file cabinet for the department – since they were purchased by the department?