How is fair use determined?
- Across the board, courts usually focus on whether the use of another person’s song or video is “transformative.”
- Basically, did you add new expression or meaning to the original work, or could your work replace the original? For example, in the U.S., videos that might be considered fair use include commentary, criticism, research, teaching, or news reporting. The more transformative your contributions are, the less likely it is that a court would find your use to be infringing.
- In the U.S, fair use can only be determined in court by a judge. Specific rules relating to fair use or fair dealing vary on a national basis. U.S. courts look at the four factors of fair use outlined below and consider these factors together.
Think carefully about all four of these factors and get legal advice if needed.
Four factors of fair use
Purpose and character of the useHow much new expression or meaning did you add to the original work?
You’re less likely to qualify for fair use if your video serves a similar purpose as the original, or if you’re trying to monetize your video.
Nature of the copyrighted workIs the copyrighted material you’re using fictional, or factual?
Factual work involves educating others, and the dissemination of information. If you’re using fictional copyrighted material, or an unpublished work, you’re less likely to qualify for fair use.
Amount and substantiality of the portion used in relation to originalHow much of the copyrighted work did you use compared to the whole?
If you borrowed a large amount of material rather than a small portion, or if you’re taking the central part of the original work, you’re less likely to qualify for fair use.
Effect of the use upon the potential value of the copyrighted workDoes your use of the material replace the need for someone to buy or stream the original?
You’re less likely to qualify for fair use if your use of the copyrighted material harms the copyright owner’s ability to profit from their original work.