Can I Touch the Baby? Or, Copyright and Fair Use

Babies don’t stay locked up in the bars of a crib, they get enfolded into the family whether they like it or not. Creative works don’t stay untouchably locked up in copyright, either; they get integrated into the culture. When my aunt had twins, I was only able to touch them and play with them if I could answer the question, “Did you wash your hands?” with a yes. If you can get past a few questions, you get to play with the creative works of others. The term for this is fair use.

One of the goals of copyright law is to encourage the creation of new works. Societies and cultures benefit when people make cool things and share them with others. The more new works there are, the richer we all are. It means more opportunities to learn, to find inspiration, to discover new ideas, and to see the world with new eyes. Copyright encourages creation primarily by protecting new works so that creators have the chance to get paid for their efforts. Creators need to eat, too! Fair use balances out this protection by letting people use the work, while still protecting it from copying that cheats creators. This lets the new work still spark the imaginations of others. It also lets people learn and draw conclusions from studying how this work fits into the world around it.

To determine if a particular use if fair, there are four questions to consider.

1)     What are you using it for?

It’s ok to use things for educational purposes. Teachers and students can use parts of copyrighted works as part of the learning process without infringing copyright.

It’s also okay to use parts of a work as examples for a review or report on it. Criticism and commentary on a work are considered fair use. Using pieces of the work to discuss it is just fine. Remember to cite your sources to give the authors and creators the credit they deserve.

Using a work to create a parody is also fair use. This kind of use is referred to as transformational. Any time a work is taken by a second creator and changed so that it communicates different ideas than the original, the new work that is created through that process is also protected by copyright and considered fair use. Think Weird Al Yankovic.

Fan art and Fan fiction are examples of creative works inspired by the work of someone else. It is possible for fan art and fan fiction to fall under fair use, but sometimes very protective authors consider it copyright infringement. There are no definitive rules for determining which is which. Often, it’s up to the author, and whether they are ok with fans creating works based on their own. Fan fiction written based on older books, like the Sherlock Holmes stories by Arthur Conan Doyle or Pride and Prejudice by Jane Austen is totally safe and fair. Fan fiction written based on more current works like Harry Potter may be less fair, depending on how closely your work copies the original.

 2)      What kind of a work is it?

Facts can’t be copyrighted. The more factual a work is, the more likely it is that using it will be considered fair. Using a paragraph from a text book = more fair. Using a passage from a Harry Potter book = less fair.

3)      How much of it are you using?

Shorter is better if you want to use something fairly. Using a smaller percentage of the work is safer. Also, parts of the work that aren’t the heart of the work are fairer to use. The heart of the work is the most iconic, memorable, meaningful, characteristic part of it.

 4)      Will using this work cheat the creator?

If using the work will prevent the creator of a work from receiving benefits from it, then the use isn’t fair. For example, if your use involves sharing enough of a work so that people can access it and feel like they don’t need to buy it, then that is not a fair use. For example, if you were to take a few of the best short stories from a new author’s collection and post them on your blog, that wouldn’t be fair. Even if you use those posts as a way to review and comment on the stories, people can access them and might feel they don’t need to go out and buy the book. The author has been cheated out of the chance to be paid for what they made.

Fair use is achieved when the answers to these questions balance so that the use is closer to fair than unfair. For example, if the work you are using is not very factual, but all other three factors are present, then the use is probably fair.

Fair Use lets people touch the works of others for the purpose of adding value to them, transforming them, and creating new works on the foundation of the old. If you are inspired to create or prompted to speak by the work of someone else, you are free to do so because of fair use.

 

Source:

Harper, G. K. (2012). Fair use of copyrighted materials. Copyright Crash Course. Retrieved from: http://copyright.lib.utexas.edu/copypol2.html

 

—Contributed by Victoria Salajko, Library Associate, Wheeler Taft Abbett, Sr. Library