Anyone producing and sharing content online that cites or references another author’s work may need to include a fair use disclaimer.
But what is fair use and to what extent does it provide publishers with legal protections? More importantly, where and how should a fair use act disclaimer be included on your website?
In this guide, we’ll be taking a concise yet comprehensive look at fair use copyright law, along with the potential implications of fair use policy for online and offline authors alike.
What is Fair Use?
Fair use copyright law concerns the use of another author’s work (or any copyrighted material), without first seeking their direct consent.
Under current fair use policy, authors and publishers are afforded certain protections in the event that they use copyrighted materials for one of the following purposes:
In all such instances, you may be required to use the copyrighted material to achieve the desired result. However, as you are not attempting to ‘pass off’ the work as your own or for-profit directly from it in its original form, this could be considered “transformative” use of the original material.
The problem being that as the term “transformative” is ambiguous to say the least, the whole ‘fair use’ concept tends to be interpreted differently from one person to the next.
However, the inclusion of a fair use copyright disclaimer can (to an extent) protect you from potential repercussions. By publishing such a disclaimer, you acknowledge and accept the fact that the material used or cited is not your own, nor are you attempting to take credit for it.
Fair Use and the Law
From a legal perspective, fair use is measured in accordance with official ‘Four Statutory Factors of Fair Use’, which are as follows:
1. The purpose and character of use. For example, whether the material has been used for educational/nonprofit purposes, or to generate profits.
2. Nature of the original. The type of copyrighted property used by the third party will also influence its eligibility under the fair use policy.
3. How much of the work was used. Was a small excerpt of a text used by the third party, or huge chunks of their work without the author’s consent?
4. The value of the effects. This gauges the extent to which the actions of the third party may influence the value of the copyrighted material.
We’ll now be taking a look at each of these Four Statutory Factors of Fair Use in a little more detail:
Purpose and Character of Use
The intentions of the individual using the copyrighted work is one of the most important considerations of all. Typically speaking, courts are more inclined to side with those who use copyrighted material for educational or 100% nonprofit purposes.
This covers all types of education, criticism, commentary, reporting and research – none of which must be undertaken for the purposes of generating significant profits.
However, things become complex when purpose and character of use is considered to be mixed. For example, when materials are used without permission for training or education purposes, though the user subsequently makes a profit as a result.
Nature of the Original
The type of material used without the authorization of its owner and its status at the time will also be brought into consideration. For example, whether the original material had previously been published or was predominantly private may influence coverage under the fair use act.
Contrary to popular belief, it can be more difficult to gain protection under the fair use policy when using another author’s unpublished work than a second author’s published and copyrighted materials.
Publicizing private work without the express permission of the author is therefore inadvisable under all circumstances, irrespective of intent and character of use.
How Much of the Work Was Used
Drawing the line with regards to how much of the work you can fairly use can be tricky. As it is a somewhat subjective issue, it is best to err on the side of caution and common sense.
In a typical working example, citing a 30-word quotation without permission for a 5,000-word report you’re writing probably isn’t going to land you in trouble. Even if your article is being published for profit, this one citation alone is unlikely to be considered the basis of your entire piece.
However, multiple quotations or those of a longer nature used when penning a report could be a different story entirely. There’s also a big difference between citing an author with clear references/links to their original text and trying to pass off their work as your own.
The Value of the Effects
Both sides of the argument are considered where value of the effects are concerned. This includes the extent to which the individual using the copyrighted material has profited from their venture, along with if and to what extent the material’s owner has suffered losses.
However, this once again becomes contentious as monetary effects alone cannot be used to determine eligibility or otherwise under fair use policy. Taking the example above, a30-word quotation in a 5,000-word report is unlikely to land the author in trouble, but the owner of the copyrighted material could file a complaint is said report generated enormous profits for its writer.
Fair Use in the Courts
When matters pertaining to fair use are brought before the courts, each of these four factors will be given fair consideration. Ultimately, it is up to the courts to decide whether or not the unauthorized use of copyrighted material can be considered fair, reasonable and ethical.
Due to the complexities involved in bringing fair use arguments before the courts, most complainants prefer to settle things privately. Nevertheless, it’s perfectly possible for a relatively simple copyright quarrel to result in enormous fees and penalties on either side of the dispute.
Hence, it is essential to ensure you are sufficiently protected and mindful of copyright law. In fact, we recommend that you take a look at various disclaimer examples.
When and Why You Need a Fair Use Disclaimer
If you intend to borrow any material whatsoever from one or more third parties without their express consent, you need a fair use disclaimer in place. Even if your intention is to use it for purely transformative reasons and with zero chance of generating a profit, it’s still important to publish a viable fair use disclaimer.
However, it’s important to remember that a fair use policy cannot and will not provide comprehensive protection from all potential consequences associated with the violation of copyright law. Instead, it is simply a way of demonstrating your awareness of fair use policy and your intention to only ever use copyrighted material in a fair and appropriate way.
How Do You Write a Fair Use Disclaimer?
If you are considering writing a fair use disclaimer for the first time, the easiest way to get the job done right is to consult a series of published examples. The basics of a fair use disclaimer are relatively simple, but the content should nonetheless be personalized in accordance with the type of materials you intend to use and how you intend to use it.
Automated fair use disclaimer generators are available, but aren’t always capable of producing coherent or valid texts. For added weight, it’s also advisable to include an external link to the applicable legal policy or text in your jurisdiction, as an added indication of your comprehension and compliance with copyright law. Issues like CCPA vs GDPR are even more complex, for example.