Despite the title, it’s essential for me to start off this post with the same advice I give my clients. It’s as follows:
If you didn’t create the content you want to use, don’t use it without the express written permission of the creator or legal rights holder.
Also let me say, right off the bat, that while I am a California lawyer, I’m not your lawyer. No legal advice is given in this post. What I am doing in this post is sharing a legal concept that you might find useful. Please do us both a favor and use these steps to find and contact a lawyer in your state with any questions.
Now that I’ve gotten that off my chest, there are times when you may be able to legally use someone else’s copyrighted material (pictures, videos, parts of blog posts) without their permission. This happens when your use falls under what is called the Fair Use Doctrine.
Fair Use Doctrine
The Fair Use Doctrine (FUD) is a United States law that allows for the limited use of copyrighted material. Under the FUD, you do not first need to get the permission of the copyright holder before using the content.
The FUD exists to try and balance the interests of the public use of creative works with the legal rights of creators and copyright holders. Several examples of content that falls under the FUD includes (1) news reporting, (2) commentary, (3) teaching, (4) criticism, (5) parody, (6) research, (7) scholarship and (8) search engines.
There is a four-factor test that is used to determine what falls under the FUD. This includes the purpose and character of the use mentioned above. The test also involves whether (1) the use is for commercial purposes or 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.
The courts also take several other facts into consideration when deciding if the FUD applies to certain content, such as acknowledging the creator’s name in the content use. While the FUD allows you to use copyrighted protected content, this can be a complicated area to navigate. My recommendation is to always check with a lawyer in your state in you are relying on the FUD when sharing someone else’s content. He or she can review your specific intended use and provide you with appropriate legal advice.
I’m sharing the recommendation to consult with a lawyer because, if a claim is brought against you for copyright infringement, it is your burden to prove that your use of the content falls under the FUD. Because claims can take years to litigate, the time and expense to you can be overwhelming, even if you’ve done nothing wrong. This is why you need to be aware of all the above and conduct yourself accordingly.
Conclusion
If you feel the need to use someone else’s copyrighted content, always try to do so only after getting permission from the owner of the content. Although the FUD is here to protect you, what I’ve noticed over the years is that the FUD is a grey area of law that should be avoided when at all possible.
Before dipping your toe into the FUD water, make sure your lawyer has reviewed what you want to use and has told you it’s safe to jump in headfirst.
