Common Myths of “Fair Use”

Most people have heard the term “fair use” in the context of copyright, but it seems that very few really understand it. They seem to think it gives them the right to use someone else’s work under certain conditions.

First of all, fair use is not a “right” at all, it is an “affirmative defense.” That means two things: (1) it is decided by a court, and (2) it might be an excuse where a person has been determined to have infringed someone else’s copyright. In real terms, this means that no one can tell you in advance for certain whether your use will be considered fair use.

MYTH of Noncommercial Use

One of the most common myths is that as long as you’re not making money off of using someone else’s work, it’s okay to copy it. That simply isn’t true.

Copyright gives the owner the exclusive right to copy, distribute, perform, display, or make derivative works from the copyrighted work. “Exclusive” means just that: no else can use the work without the owner’s permission. Whether the use is for personal or commercial use makes no difference under the law. The owner—and only the owner—can decide to sell it or give it away.

MYTH Of Attribution

Just because you give the author credit for his work doesn’t give you the right to copy it. If you want to copy someone’s work, you need to ask permission. And, often, pay a fee.

Perhaps the root of this confusion is the confusion some people have between plagiarism and copyright infringement. Plagiarism simply means passing off someone else’s work as your own. In school, we are taught to avoid this by properly crediting the source. That’s fine for the classroom, because scholarly use is one of the criteria for fair use. Proper attribution won’t protect you, however, if you have infringed someone’s copyright.

MYTH Of Minimal Use

There are a surprising number of filmmakers and writers who believe that if they don’t copy more than a little of someone else’s writing (I’ve seen everywhere from 500 to 2000 words), they’re not infringing that person’s copyright.

Likewise, there are many filmmakers and musicians who think that they can use music clips as long as they don’t exceed a certain number of seconds (I’ve heard everywhere from 5 seconds to 30 seconds). Not true.

One of my favorite legal quotes in copyright law is from a case where the judge said that no copyright infringer “can excuse the wrong by showing how much of his work he did not pirate.” Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2nd Cir. 1936).

In summary, it is important to note that even though “fair use” is mentioned in copyright law, there are no “bright line” rules for what is and is not fair use. The distinction between fair use and infringement in a given case may be unclear, even though there are tests that courts routinely apply in such cases. A given judge may (or may not) review any of the above factors—as well as several others—in determining whether an infringement is fair use, but no one factor by itself has ever been held to be determinative.

For More Information

In the video on Rights, volume 2 of the What Every Filmmaker Needs to Know About the Law series, I discuss copyright and the tests for fair use in great detail, presented in a way that non-lawyers can easily understand. If you don’t already own the set (which is available at a discount to my readers), go to WhatEveryFilmmakerNeedsToKnowAboutTheLaw.com to get your copy.

If you’d like my help with your production or your agreements, click the “Production Counsel Website” link above.

© Keith E. Cooper. All rights reserved. You may freely link to this post, but please do not copy (in whole or in part) without permission of the copyright owner.

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