What copyright fair use is
A US exception, in 17 U.S.C. § 107, that makes some unlicensed uses lawful. It names example purposes: "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research". A named purpose helps, but courts still weigh four factors together, case by case and after the fact. Nobody issues a fair-use certificate in advance.
The 4 factors of fair use, and how courts weigh them
1. Purpose and character of the use
Commercial or non-profit educational, and above all, is it transformative? The Copyright Office describes that as uses that "add something new, with a further purpose or different character".
- Campbell v. Acuff-Rose Music (1994): a commercial parody of "Oh, Pretty Woman" could be fair use. "The more transformative the new work, the less will be the significance of other factors, like commercialism." Commercial use is not presumed unfair.
- Andy Warhol Foundation v. Goldsmith (2023): the foundation licensed Warhol's print, based on Lynn Goldsmith's photo of Prince, to a magazine for a story about Prince. Both images served the same purpose, illustrating magazine stories about him, and the use was commercial, so factor 1 favoured Goldsmith, 7–2. New expression or meaning is "not, without more, dispositive": what counts is a different purpose, weighed against how commercial the use is.
So restyling, cropping or filtering a work doesn't help much if you use it for the same job as the original.
2. Nature of the copyrighted work
Factual works (news, reference, technical writing) are safer to use than highly creative ones (fiction, music, art, photographs). Unpublished works weigh against fair use, though that alone doesn't rule it out. This factor rarely decides a case.
3. Amount and substantiality of the portion used
Less helps, but a small part can be too much if it is the "heart" of the work, such as a song's hook or a film's key scene. Using a whole work can be fair when the purpose needs it, as in commenting on a photo or a parody. Did you take more than your purpose required?
4. Effect on the market for the original
Does your use substitute for the original, or for licences the owner normally sells? A review that puts people off a book isn't market harm in this sense; a copy that means they needn't buy it is. Often decisive for photos and music, which owners license all the time.
Quick self-check
Tick each factor that leans your way.
What doesn't make a use fair
Labels don't change the outcome; what you did with the work does. None of these help on their own:
- giving credit or linking to the source;
- a disclaimer such as "no copyright infringement intended" (see what a copyright disclaimer can and can't do);
- calling it "commentary", non-commercial or "for entertainment purposes only";
- using only a few seconds or a small crop.
Fair use examples: common online scenarios
| Scenario | Verdict | Why |
|---|---|---|
| Game or film review with a few screenshots you discuss | Likely fair | Criticism; a screenshot doesn't replace the game or film |
| Quoting a few lines of an article to rebut it | Likely fair | Commentary on the work, using only what the argument needs |
| Parody that targets the original | Often fair | Campbell: parody must recall the original, so some borrowing is expected |
| Meme built on a film still | Risky | Stronger if it comments on the image; weaker if commercial or decorative |
| Reaction video playing a whole clip with little commentary | Risky to unlikely | Little new purpose; can substitute for the original |
| Someone's photo illustrating a blog post | Unlikely | Same purpose it is licensed for, whole work, direct market harm |
| Popular song as background music | Unlikely | Used for its appeal, not commented on; routinely licensed for this |
| Posting a full article "for discussion" | Unlikely | Whole work; readers no longer need the original |
Tendencies, not rulings: real cases turn on how much was used, what was said about it, whether money was made and what licensing market exists.
How many seconds of a song is fair use?
None is guaranteed. "10 seconds" and "30 seconds" rules are myths: the Copyright Office says no legal rule permits a specific number of words, notes or percentage of a work. YouTube warns claims can apply "even if you only use a few seconds", and a short clip of a song's most recognisable part weighs heavily under factor 3.
On samples, appeals courts split: the Sixth Circuit says sampling a sound recording always needs a licence; the Ninth allows a de minimis defence. A licensed library, or music cleared for your platform, is far safer than counting seconds.
Fair use for images and photos
Photos lose on several factors at once: they are creative (2), you use the whole image (3), and photographers sell the licence you skipped (4). After Warhol, using one for the illustrative job it was made for is weak on factor 1 too. It is stronger when the photo itself is the subject:
- news reporting about the photo, such as a viral or controversial image;
- criticism or analysis of the photographer's work;
- a small, low-resolution copy needed to identify the work you are discussing.
Otherwise use your own images, a stock licence, or a Creative Commons image with its conditions met. Unlicensed blog images are among the most common sources of copyright infringement claims and takedowns.
Fair use and DMCA takedowns
A takedown notice must state a good-faith belief that the use is "not authorized by the copyright owner, its agent, or the law". In Lenz v. Universal Music (2015, amended 2016), over a home video of a toddler dancing to a Prince song, the Ninth Circuit held that fair use is authorised by law, so owners must consider it before sending. But the test is subjective: § 512(f) covers knowing misrepresentation, so a sender who genuinely believed the use wasn't fair isn't liable, even if wrong. Few such claims succeed.
If a takedown removed a fair use, the statutory response is a DMCA counter-notice: under penalty of perjury you state a good-faith belief the removal was a mistake or misidentification, consent to a federal court's jurisdiction and give the claimant your contact details. The material can return 10 to 14 business days later unless the claimant says it has sued. Fair use is only tested in court, so weigh it against the patterns in false and abusive takedowns.
FAQs
What are the 4 factors of fair use?
The purpose and character of the use (including whether it is commercial or transformative), the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the market for the original. Courts weigh all four together.
How many seconds of a song can I use under fair use?
There is no safe number. The Copyright Office says no fixed number of words or notes is permitted, and even a few seconds can infringe if it is a recognisable part of the song.
Is it fair use if I give credit?
Not by itself. Credit doesn't turn a copy into fair use, though a licence you do have, such as Creative Commons, may require attribution.
Can I use an image under fair use if it's non-commercial?
Non-commercial use helps under the first factor, but it isn't a defence on its own. Using a whole photo for the purpose it was made for usually still fails, especially where the photographer licenses that kind of use.
Does fair use stop a DMCA takedown?
Not automatically. Senders must consider fair use before filing, but platforms usually remove first. Your statutory route is a counter-notice, which carries legal risk.
Are memes fair use?
Some are, especially when they comment on or transform the original image. Commercial use, such as a meme image in an advertisement, is much riskier.
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