Fair Use Explained: How to Safely Use Copywrited Assets on Social Media

Date published

April 15, 2022

"Fair use" is a legal doctrine that says under certain circumstances, you may use copyrighted content without permission and without fear of an infringement suit.

In the United States, judges decide what’s considered fair use on a case-by-case basis by considering these four factors:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair, and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character and do not substitute for the original use of the work.

Nature of the copyrighted work: This factor analyzes the degree to which the work used relates to the copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of fair use than using a factual work (such as a technical article or news item). In addition, the use of unpublished work is less likely to be considered fair.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at the quantity and quality of the copyrighted material used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found the use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—the “heart”—of the work.
Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether and to what extent the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use hurts the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it becomes widespread.