Fair Use: Getting by with a little help from our friends

Post by Molly Schwartz, Associate Fellow, R Street Institute

Is it legal for me to publish a blog post with this title? Am I violating copyright law? I am, after all, reusing lyrics from the chorus of a popular Beatles song. The recognizability and cultural resonance of the lyrics is exactly what makes it an appealing title for me to use.

Many of us have experienced it. That little twinge of uncertainty as we copy and paste an image from a Google search into a PowerPoint slide the night before a presentation and wonder, wearily, “I can do this, right?”

It’s a frustrating feeling. Most of us want to follow the law, and even when we don’t, there are mechanisms in place ensuring that we generally do. Copyright is one of those areas of law that we interact with on a daily basis as we partake in activities that feel harmless, or even beneficial, to the rest of society.

No area of the federal law touches all of our lives so frequently and so ubiquitously as copyright law. Every time you write an email, every time you turn on your computer, every time you download a piece of software, every time you stream a song, every time you take a selfie, you are interacting with copyright law because you are making copies of someone else’s original idea. How copyright is regulated by the federal government has a direct impact on artists, tech companies, libraries, schools, content industries and ordinary users like you and me. But luckily, most of us do not live in fear of getting fined every time we post a meme on Facebook.

The reason why so many of our daily activities do not violate copyright is that the law recognizes an important limitation on the exclusive rights of copyright holders: the doctrine of “fair use.” In celebration of Fair Use Week, it’s worth taking a look at how fair use lets us interact with the creations in the world around us, especially online, and how its application could be improved.

The principle of fair use holds that there are some instances in which people can use copyrighted materials without permission. It is a broad and flexible concept that is defined on a case-by-case basis, as copyright infringement cases go to court. There are some basic situations, such as in educational and research settings, that generally are deemed fair use, but hard and fast rules are difficult to define.

The malleable nature of fair use means that its definition and applications are constantly playing out in the courts and in our media. The HathiTrust Digital Library, a repository of scanned books set up by a consortium of research libraries, was recently ruled as fair use after the Authors Guild sued the consortium. Last week, a Fox News post on its website of an iconic photograph of three firefighters raising the American flag on Sept. 11, 2001 was denied safe harbor of the fair use doctrine.

We are surrounded by popular culture that is only available thanks to fair use. Without fair use, there would be no video clips on Jon Stewart’s The Daily Show or fan fiction, which is how the immensely popular “50 Shades of Grey” first came to life. It is still unclear how the complicated nuances of fair use will play out on social platforms like Youtube, where it is up to automated bots (without law degrees) to find and report copyright violations.

While fair use is a convenient safety net, its uncertain application can be frustrating, fostering fear, apathy, confusion, disregard or a combination of all of the above. Luckily, libraries and advocacy groups have stepped up to produce guides and best practices to help us laypeople navigate the copyright jungle:

·        Association of Research Libraries The Good News about Library Fair Use (infographic)

·        American Library Association Fair Use Evaluator

·        College Art Association Code of Best Practices in Fair Use for the Visual Arts

·        Columbia University Libraries Fair Use Checklist

·        NYU Libraries Fair Use Guide

·        Stanford University Libraries Copyright & Fair Use

·        Harvard University Copyright and Fair Use Guide

·        University of Minnesota Libraries Fair Use Tool 

·        Center for Media and Social Impact Documentary Filmmakers’ Statement of Best Practices in Fair Use