The Fair Use Doctrine

Though copyright laws are generally strict in the U.S., Europe and Canada, the U.S. does have a loophole called fair use. The fair use doctrine is a collection of guidelines that dictates what copyrighted items can and can’t be used by someone other than the copyright holder.

Unfortunately, the guidelines are just that- a group of loose rules that are ultimately dependent on interpretation. In at least one case, the U.S. Supreme Court had to sort out whether fair use or copyright infringement had occurred. To avoid lawsuits and scorn over copyright infringement, anyone using the pictures or words of someone else should be aware of the basic guidelines of fair use.

The Purpose of the Work

One of the most important variables is what the work will actually be used for. The fair use doctrine allows for a copyrighted photo or written work to be used by anyone when it is for the purpose of teaching about the work, criticizing it commenting about it under some circumstances, researching it and reporting about it.

The Type of Work

The type of work is supposed to be a factor in how it can be used by others, but there is no clear distinction about what types of items can be used over what other types. This is one of the vaguest areas of the fair use doctrine. In some cases, it has been affected by whether the work was published or unpublished. In others, it’s been more about whether the item was fiction or nonfiction.

How Much of the Work is Used

There are many style guidelines that specify a number of words that can be used, but none of those are fair use doctrine guidelines. The fair use laws give no specific word count. The real guidelines is more about how important the quoted words or photos were to the work as a whole. For instance, a book that revolves around revealing a secret can sue for copyright infringement if a review publishes the words that give away that secret.

How Sales of the Work are Affected

Using the analogy of the secret, the work that infringed on the book’s copyright by telling the secret would also greatly affect the book’s sales. Why buy the book when the review told what everyone wanted to know? A good review, criticism or teaching tool will probably increase interest in the work rather than extinguishing it.

Staying on the right side of copyright law and the fair use doctrine requires being aware of both. It is possible to use copyrighted photos and words for commercial purposes if each section of the doctrine is considered carefully.

Remember also to consider libel in order to stay lawsuit free.

Photographers Own Their Work

Print Article

Email Article

View All Articles

How to subscribe to feeds