Fair Use, Explained Simply

TL;DR: To know what fair use is, we first need to find out why it exists. And only then does it start making some sense.

(Note: If you’re not comfortable with the idea of copyright, this post won’t make so much sense to you. If you’d like a simple introduction to copyright generally, do feel free to check out my YouTube series on copyright!)

Let’s say you write an original song. You would probably own the copyright to that song. If I copy your song and try to release it first, you can sue me and get me to take down your song.

The idea is simple enough, but here’s where it breaks down: art is built upon other art. Picasso’s quote rings true: “Good artists copy, great artists steal.” In reality, it’s quite hard to find creative things that aren’t copied off other creative things. For example, what if I was your number-one fan, and I was so inspired by your song that my song ended up sounding like yours? It might be true that I “copied” your song, but it doesn’t seem right to get me for it.

And for that matter, let’s take a step back and ask what copyright is really about. At its core, copyright tries to strike some balance: between protecting creators on one hand, and letting society benefit from creative things on the other. If I got in trouble for copying your song, that sends a signal to society that you cannot be inspired by other peoples’ songs. That’s silly, and it throws off the balance that copyright wants to strike.

So in this case, perhaps, you could say that what I did was “fair”. But if we add a few extra facts, your opinion might change. Let’s say I basically sung exactly the same song that you sung, and I’m trying to sell my song at a lower price, just out of my raw desire to promote your music, That might warm your heart, but it also means that the money from my sales of your song goes to me, when it should have gone to you! Also, what if your song wasn’t published yet, and I published it first? Or, what if I just copied the underlying idea of your song, instead of its actual musical elements? (And for that matter, what is the difference between those things?)

Basically, it’s complicated. It must be dealt with on a case-by-case basis. That’s the essence of “fair use”.

“Fair use” recognises that it’s complicated. Its underlying idea is that “great artists steal”, but some degree of copying should be fine, depending on the circumstances. So, of course, there cannot be a clear-cut rule for what is a fair use and what is not. There are some more-specific ideas within “fair use”, such as “transformativeness”, but at the end of the day, every case does have to be decided on its own facts. It ultimately turns on some guidelines and a judge’s common sense.

Okay, so what are the four fair use factors, and what is “transformativeness”?

If you’ve ever looked around the Internet to find out if the art/music/fanfic you were doing would cause you copyright troubles, you’ve probably found some articles about fair use and the like. You might also have been greeted with some very scary terminology. So I’ll try to explain two of the most commonly-seen sets of terminology out there.


First, the four fair use factors. I’ve copied these down exactly so many times that it pains me to do so again (you’re free to check out the actual provision yourself here). But unfortunately, there are no better ways of introducing them. So, for the umpteenth time, we have:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  2. the nature of the copyrighted work;

  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

  4. the effect of the use upon the potential market for or value of the copyrighted work.

What does it all mean? To begin with, let’s go back to the core idea of fair use, explained in the TL;DR section above. Fair use recognises that it is good for works to be built upon other works, so you shouldn’t protect creators too much—if you do, you prevent new works from being created off old ones too much, which is a bad thing. Fair use also recognises that figuring out which works are “fair” is a really complicated exercise that requires you to consider everything. In that context, the four fair use factors are are just guidelines for what really is a “consider all the circumstances” type of exercise (though even this is complicated—see Cambridge University Press v Patton).

Here’s how fair use works in reality. Let’s say, using the example of me writing a song based on your song, I try to claim that my song is a “fair use” of yours. You don’t agree, and you think I’ve infringed your copyright (basically, I’ve copied your song and that is wrong). Whose version is correct? Only a neutral person who knows the law can tell us—that’s the judge, of course. Only the courts can determine whether a use is fair or not. And when they make that decision, they take into account all the four factors.

What exactly each of the four factors means is an extraordinarily complicated question. But here’s the best way I could digest it, based on the main US Supreme Court case on fair use (Campbell v Acuff-Rose Music, Inc):

  1. “purpose and character of the use”: Why did I make my song, and is that similar to why you made your song (purpose)? Also, what form does my use take (character—in this case, it’s a song)?

  2. “nature of the copyrighted work”: Was your song published or not? How “original” was your song (note: “original” is a complicated technical word which I won’t explain here);

  3. “amount and substantiality of the portion used”: How much of your song did I copy? Which parts did I copy—the cool parts or just the standard bits?

  4. “potential market of the copyrighted work”: How am I marketing my song to the public, and will it affect the audience you’re trying to reach?

Again, all of these factors are just guidelines (also recall: it’s complicated). Ultimately, answering the question of fair use is a matter of common sense. But still, these guides are pretty useful as guides to common sense.

Still, one guide has proved particularly useful for the US courts: the idea of “transformativeness”.


What is “transformativeness”? Or, as it’s more commonly put, “transformative use”? The idea is simple: if I copy your song, but I “transform” it by re-purposing it or changing its character, that’s probably okay in the eyes of copyright. It’s probably a “fair use”.

Why?

Because transformative works benefit society.

Why?

Just because. The US Supreme Court said it. My common sense agrees, and I would think that most peoples’ common senses agree.

For some time, lots of cases followed the position, and it became a sort of “if transformative, then fair use” formula. But there has been a retreat from the concept recently. And the amount of academic debate going into this concept, as well as fair use generally, is truly staggering (if you’re interested, see Jane Ginsburg, “Fair Use in the United States: Transformed, Deformed, Reformed?” (2020) Sing JLS 265).

Ultimately, all we really need to know about “transformativeness” is that it’s one of the more significant parts of fair use. But it’s not (or, at least, no longer) determinative by itself. So you still end up looking at all the factors and coming to a common sense decision.


Conclusion

So fair use is complicated. And necessarily so. But once you figure out what it’s for, you can start making sense of how it’s dealt with in reality, what its four factors really mean, and some of its spin-off ideas.

Hope this was useful; feel free to drop me your thoughts in the comments section or on the Ask Me Law Stuff page! Might consider posting about some interesting fair use decisions at some point. But until then, take care, and much cheers.

(The authority on fair use, and my main source for this post: Campbell v Acuff-Rose Music, Inc. 510 US 569)

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