The Fantastic Four of Fair Use
The Fantastic Four succeed because they work together. They each have unique talents and personalities. Left to their own devices, they’re consumed by them—ahem, the Human Torch. Together, they cohere. No one goes rogue. The four accomplish more good and defeat the villain because they work in concert and hold each other accountable.
Fair use works similarly. It can often be a cloudy subject on the best of days, and it’s only gotten worse with the plethora of content available today. When is it fair to use an Instagram photo in a PR campaign? What are the rules for things like Periscope, Meerkat and Blab?
Fortunately, the U.S. Copyright Office has instituted its own version of the Fantastic Four for fair use. Keep them in mind, and your PR efforts will drive results and, perhaps, defeat a villain or two.
The first of the four factors is purpose. Consider it the Mr. Fantastic of the bunch. It answers the question “why.”
Why are you using copyrighted work? Is it for commercial profit or for nonprofit educational reasons?
Generally, noncommercial uses are “fair,” but always look at the copyright to make sure there aren’t any weird licenses or regulations applied to the work. If you do intend to use the work for sales or promotional purposes, always obtain permission from the author. Also know that you may have to pay a fee for reprinting rights.
It’s fitting to think of “nature” as the Human Torch. This factor looks at the nature of the copyrighted work. What was its intended use? How are you building on that to create something new?
Fair use typically doesn’t apply if you don’t change the original work in some way. Fair use is for transformative acts and commentary, such as the kind found on the news or late-night talk shows.
Amount, naturally, is the Invisible Woman. The U.S. Copyright Office defines it as “the amount and substantiality of the portion used in relation to the copyright-protected work as a whole.”
If you quote a work in its entirety, watch out. You’re likely infringing upon the copyright, if not committing outright plagiarism. However, even small quotes can lead to danger zones, usually when the material comes from a source that would otherwise be found behind a pay wall.
Effect concerns two elements: one, the effect of the use on the potential market for the copyright-protected work; and, two, the effect of the use on the value of the copyrighted work. It’s the Thing in action.
An example of “effect” is using an article from the Harvard Business Review. Since the brand licenses its content and requires subscriptions, you’re trampling on one of their revenue streams. They might not mind a quote here and there, but they’re going to take notice if you do it frequently or use an article wholesale.
Fair use is complicated, but take it down to size with the Fantastic Four. They’ll guide you whenever the subject gets gray.
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