So What is Fair Use, Anyway?

Ever wonder how Weird Al gets permission to do all of his parodies? How popular songs can appear in places you wouldn’t expect? How your teachers don’t have to pay copyright or royalty fees for certain educational materials? How college radio stations have the budget to play the hits? This is all covered under the “fair use” statute. Here is what it is and how you can use certain materials in specific situations. 

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.

So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.

Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.

Commentary and Criticism

If you are commenting upon or critiquing a copyrighted work – for instance, writing a book review – fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:

    • quoting a few lines from a Bob Dylan song in a music review
    • summarizing and quoting from a medical article on prostate cancer in a news report
    • copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
    • copying a portion of a Sports Illustrated magazine article for use in a related court case.

The underlying rationale of this rule is that the public reaps benefits from your review, which is enhanced by including some of the copyrighted material. Additional examples of commentary or criticism are provided in the examples of fair use cases.

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