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What is "Fair Use"?
Fair use is an affirmative defense to copyright infringement, meaning you won’t be held liable for damages if you can prove that you used someone else’s work for purposes of criticism, comment, news reporting, teaching, scholarship, or research. But even citing one of these purposes, doesn’t automatically mean that your use will be considered “fair.” Under copyright law, these are simply “illustrative purposes,” or examples of the types of purposes that lend themselves to a claim of fair use. 

The purpose of the fair use doctrine is to permit use of copyrighted material that are considered beneficial to society, not to allow you to make money off of someone else’s work or to use their work to promote yourself. Even relatively small uses of someone else’s work have been found to constitute copyright infringement and not fair use. Contrary to popular belief, there is no hard and fast rule that automatically allows you to use a certain percentage or amount of someone else’s work. 
Because the law requires you to prove that your use of someone else’s material was fair, it is still better to seek permission from the copyright owner rather than assume the fair use defense will be successful. 

How is Fair Use Determined?
In determining whether your use of someone else’s content is “fair,” the courts ask:​
  • Why and how were you using the work? Was your use of the work for commercial purposes? Or was it for nonprofit educational purposes? Did you add something new to the work, or merely “copy and paste” someone else’s content?
  • Was the original work factual or creative? The fair use defense is more likely to succeed in cases where you were using a published, factual work, i.e. a published research paper, as opposed to using someone’s unpublished creative work. 
  • How much of the work did you use? The more of someone else’s work you use, the less likely that use is going to be considered fair. But even using a small portion of someone’s work may not be fair if that small portion is considered the “heart of the work.” 
  • How did your use affect the potential market for the work or the value of the work? For example, uploading a pirated copy of a movie obviously decreases demand for copies that are sold or streamed to paying viewers. Similarly, it’s difficult to claim fair use if the copyright owner currently licenses the content, but you didn’t obtain a license. This often comes into play when you place stock photography on your small business website without checking the license terms first. 

​Generally, no one factor will determine whether the defense applies. Instead, the courts typically look at how each factor applies before making a decision. Cases relying on a fair use defense are evaluated on a case-by-case basis, meaning these cases are more expensive and more complicated than you might think.

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