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