Fair Use

What is fair use?

In United States copyright law, “fair use” allows creators to incorporate copyrighted materials into their own work—without obtaining the permission of the copyright owner—when certain conditions are met. (More on those conditions below.)

Fair use recognizes that while the primary purpose of copyright laws is to encourage artistic and cultural innovation, rigid application of copyrights would actually stifle that creativity. Society benefits when creators have the freedom to critique and comment on the works of their peers, or to remix and reuse artistic material in new and inventive ways.

Read on to learn more about how fair use is determined, and how it may apply to the work you upload to Hustle.

Does fair use give me free reign to reuse any material I want without getting permission?

No. “Fair Use” isn’t a magic phrase you can invoke to excuse your use of someone else’s creative work under any circumstances. To be clear: you can’t copy someone else’s work and then simply claim fair use.

What is considered “fair use” depends on the circumstances. To over-simplify for a moment, fair use protects creators who reuse copyrighted content in a few ways: when the new work directly critiques and comments on existing works; for educational or scholarly purposes; to transform the source material into something new. Of course, it’s a bit more complicated than that, so please read on before deciding whether you can claim fair use.

Who decides what does and does not count as fair use?

The courts decide what is fair use and what isn’t. However, creators should understand the concepts behind fair use based on the “four factors” described below to determine whether to upload a video that uses copyrighted content without permission. It can be difficult to predict what a court will do with a particular case, but understanding the factors will help give you a sense of how risky your use might be.

How is fair use determined? What are the “four factors”?

There is no simple formula or method to easily determine whether a particular use of a copyrighted work is a fair one.

The copyright statute gives us four factors to apply on a case-by-case basis:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for or value of the copyrighted work.

The four factors are more than a checklist. They have to be analyzed at an individual level and taken together as a whole, but they might be weighted differently depending on the facts of your particular case.

Courts use these factors to decide whether a particular use qualifies, but remember that they can only do so after you have been sued for copyright infringement. The burden of establishing the fair use exception always falls on the person asserting it; the copyright holder does not have to prove the lack of fair use.

What do the four fair use factors mean?

The fair use factors are generally taken to mean:

Important: Remember that there’s no formula for adding up the fair use factors. Different courts will interpret the factors in different ways. Claiming fair use always carries a certain amount of legal risk, but awareness of the factors above will help you decide whether you’re taking an acceptable risk.

How do Hustle moderators decide if a video qualifies as fair use?

Although we generally place the responsibility on our members to articulate their fair use claims, Hustle moderators sometimes have to make the call on a particular video.

Our moderators remove videos that constitute obvious cases of infringement when they are brought to our attention. Examples include rips of movies, television shows, and music videos, or a complete song playing in a video with a blank background or minimal visuals. These aren’t the only examples of things that we remove as infringing, so please don’t take the list as exhaustive.

We also respond to appeals under our Copyright Match system. If Copyright Match flags your video but you believe it qualifies as a fair use, you can appeal the match and let our moderators know why you think fair use applies. For best results, you should include as much information as possible about why the four factors of fair use weigh in your favor and exactly how they apply to your video.

Please note that any determination we make will not impact any claim a copyright holder may have against you. Our allowing a video to appear on Hustle doesn’t mean you can’t be sued.

How much of a copyrighted work can I use under fair use?

There are not a lot of clearly defined rules about fair use. Thus, there are no rules such as “you can use up to 30 seconds” of a video or musical recording.

Does fair use apply to the background music in my video?

We strongly advise against using a commercial music recording as the background song of your video, particularly if you’re just looking to enhance the impact of your video. However, if the visual accompaniment to the song somehow “transforms” the original work to create something wholly new and unique, you may have a stronger claim to fair use.

What if I say my use is a fair use in the video description?

Writing “Copyrighted material used under fair use” or “No copyright infringement intended” in your video description or in the credits does not strengthen your claim.

What if I give credit to the original artists?

Attributing the original artist(s) in your video description or credits is a very nice thing to do. But it doesn’t impact the fair use analysis.

Can Hustle tell me if my video counts as fair use?

No. We would if we could, but there is no way to easily answer that question. Each Hustle member is solely responsible for making sure their videos don’t infringe on the copyrights of others. You can upload videos with material that you consider to be fair use, but you do so at your own risk.

That means you should think through the four factors of fair use and see if you can apply them to your videos.

Learn More

If you’re itching for additional information about fair use and copyright laws, check out the U.S. government's official word on the subject. Stanford University also offers a pretty comprehensive overview that’s worth a look.