You would be hard-pressed to find someone that appreciates a good list as much as I do. I love lists as much as Scully loved de-bunking Mulder’s paranormal findings and alien conspiracies. Whether it be to-do lists, Christmas lists, bucket lists, or pro and con lists (you get the idea), I fancy them all.
Lists are particularly helpful when trying to remember critical information and make difficult decisions. It is no wonder that a checklist can be helpful in determining whether a use of copyrighted material is likely within the limits of “fair use” under U.S. copyright law; a legal concept that has only grown murkier in the digital age where millions of people every day are making or using copyrighted work. Let me explain.
Copyright law protects “original works of authorship,” including photographs, music, videos, and blogs uploaded on social media platforms. A person who creates an original work is immediately the copyright holder of the work.
Copyright holders have several exclusive rights, including the rights to reproduce, distribute, and publicly display their works. Sharing or reposting a person’s copyrighted work on social media platforms could implicate a number of these exclusive rights, and generally constitutes infringement unless a license or permission is obtained from the copyright holder or the use constitutes “fair use.”
The fair use doctrine, which was codified into law decades before a picture or video ever went viral, permits the use or reproduction of copyrighted materials “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
What falls within the realm of fair use is case-specific and determined after weighing four factors to balance the interests of copyright holders in the control and exploitation of their works with the competing interests of the public in the free flow of ideas, information, and commerce. These factors are:
(1) the Purpose and character of the use;
(2) the Nature of the use;
(3) the Amount and substantiality of the portion of the use; and
(4) the Effect of the use on the potential market for the work.
If you have trouble recalling these factors, try using the acrostic “Poodles Need Ample Entertainment” to commit them to memory.
The factors are only guidelines. No single factor is decisive of fair use. Clear as mud, right? Such lack of clarity arguably led to the common sentiment on the web which is “you can post almost anything as long as you take it down when the [copyright] holder complains” as described by Harvard University Professor Louis Menand.
If you are like many people trying to walk the straight and narrow, you are still uncertain what these factors mean practically. This is where a checklist prepared by Columbia University Libraries Copyright Advisory Office Fair
Use can be a valuable tool. It breaks down what is considered in each of the four factors and helps you gauge whether a proposed use is likely to fall within the realm of fair use or misuse.
It’s not uncommon for aspects of a particular use to fall in both the “favors fair use” column as well as the “weighs against” fair use column, so you will need to consider the relative persuasive strength of the circumstances. Also, there may be other considerations that are not accounted for on the checklist. The checklist can nevertheless help you make a reasonable guess about whether a proposed use constitutes fair use or misuse to mitigate legal risks.
Still not sure after consulting the checklist? Check out this awesome resource by Stanford University Libraries. And, keep in mind that there are two types of situations that are more likely to cause legal problems: (1) your work causes the copyright holder to lose money; (2) the copyright holder is offended by your use.
Photo by Claire Anderson on Unsplash