“Fair use” is a key part of copyright law, it is the legal but unauthorized use of copyrighted material. Fair use promotes new cultural production by giving creators opportunities to use copyrighted material when they are making something new that incorporates or depends on copyrighted material. You can use the best practices guides to fair use, listed on the right hand side of this page to evaluate whether your use of copyrighted material is likely to be a fair use.
Lawyers and judges decide whether an unlicensed use of copyrighted material is “fair” according to a “rule of reason.” This means taking all the facts and circumstances into account to decide if an unlicensed use of copyright material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner. Fair use is flexible; it is not uncertain or unreliable. In fact, for any particular field of critical or creative activity, such as documentary filmmaking, lawyers and judges consider professional expectations and practice in assessing what is “fair” within the field. In weighing the balance at the heart of fair use analysis, courts employ a four-part test, set out in the Copyright Act. In doing so, they return again and again to two key questions:
- Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original?
- Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use?
Among other things, both questions address whether the use will cause excessive economic harm to the copyright owner.
If the answers to these two questions are affirmative, a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.
Adapted From the Documentary Filmmaker's Statement of Best Practices in Fair Use