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:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- 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:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. How are you using the copyrighted work?
- If your use can be considered “transformative,” this factor will weigh in your favor. In other words, does your video alter the original work to give it a new meaning or shed new light on it? Uses that directly appraise or comment on the original work are more likely to be transformative because they add a new meaning or message. On the other hand, are you using the material because you needed to put something in a particular scene and the copyrighted work happens to fit? Such uses will probably point away from fair use.
- Your use doesn’t necessarily have to be “transformative” to qualify for fair use (although it definitely helps). Any use that furthers the public interest could potentially tip this factor in your direction. Parody, criticism, news reporting, scholarship, and commentary are all areas where courts have traditionally recognized fair use.
- This factor also takes into account whether your use is “commercial” or “noncommercial.” Videos that seek to make money or promote a product or brand are harder to justify under this factor. While videos that are purely personal or for educational uses are weighted a bit more toward fair use, non-profit intent does not automatically qualify you for fair use.
- The nature of the copyrighted work. What type of copyrighted work are you using? This factor focuses on the content that is being re-used. It weighs against fair use if the original work is highly creative (like a song, movie, or TV show), and will weigh toward fair use if the original work is less creative (like a phone directory, scientific data, or quotes from a historical record).
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole. How much of the copyrighted work are you using? Is the portion you are using the “heart” of the original work? Generally speaking, using a great deal of the copyrighted work weighs against fair use. Less extensive use generally weighs in favor of fair use. What is considered extensive depends on the total size of the copyrighted work at issue. There are no clear percentages or calculations that decide how much is too much or where fair use ends and copyright infringement begins. In addition, even relatively small uses can point against fair use if that small use is the “heart” of the work, such as a famous riff in a song or the climactic ending of a film.
- The effect of the use upon the potential market for or value of the copyrighted work. Can your use of the copyrighted work stand as a potential substitute for the original? Uses that might negatively affect the market for the original work strongly weigh against fair use. Uses that have little to no effect will generally weigh in favor of fair use. If people could watch your video instead of the original work, this factor is less likely to favor you. The point of fair use is to encourage the creation of more and better works of art, not to enable you to profit from works of others.
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.
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.