United States: When Is Copying Content Fair Use? Does The Analysis Need To Be So Complicated?

Last Updated: December 5 2014
Article by Justin F. McNaughton

Google is in the news again for the Google book project, which is Google's ambitious effort to digitize all books.  Google was sued in 2005 by The Authors Guild, which according to its website: "has been the published writer's advocate for effective copyright, fair contracts, and free expression since 1912."  The 2-second version is: Google is copying books without obtaining permission from all authors so a group of authors represented by The Authors Guild sued Google.  Last November (2013) a Federal district court ruled that "yes" Google copied the books without permission, but that it was a "fair use" of the books.

Fair use is something of a catchphrase in copyright-speak.  It is an exception to the general rule that one of an author's rights is the right to control reproduction or publication of a work.  How do you decide if something is infringing or fair use?

According to the Copyright Act, the following uses are fair use and are not infringing:

  • Criticism
  • Comment
  • News reporting
  • Teaching (including multiple copies for classroom use)
  • Scholarship
  • Research

So this means use of works on NPR news is probably news reporting, but what about on Fox News? [background laughter].  What about Google copying all the books in the world?

The Copyright Act gives several factors to consider:

  • the purpose and character of the use – whether the use is "transformative"
  • 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 district court focused on the first factor and Google's transformation of "expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books."

The real questions for most people are:

"How do you tell if you can use something you found on the Internet?  Can I avoid the issue entirely?"

For videos, simply use the embed code so that the video plays directly from YouTube or the source.  This is what I have done on the video below.  That way you don't even have to think about this issue because you haven't copied anything.  For pictures, using pictures from creative commons is safe.  This is my co-blogger's (Matt's) approach, but he happens to love retro-style clip art anyway!

I have found that it is often more effective to use a particular drawing or photograph to demonstrate a point than simply describe it entirely in text. My real world application of fair use is to think about whether I am using the photo in the same way as the person who created it, and whether my use would hurt the author's business rather than promote it.  While this isn't the legal standard, it works as a basic litmus test for me.  Take the Creative Commons logo on this page and the Google logo on this page for example.  These are being used to promote both of these entities and I'm not using them in any way that would damage either entity.

If you want the formalistic version of the analysis:

  • One of my primary purposes in writing this blog is to provide an easy-to-use resource for people to use when problem solving for their company (i.e., teaching/education).
  • Another purpose is to keep interested followers informed of the interplay between current events and legal issues (i.e., news reporting).
  • The purpose and character of my use of visual works is transformative because I try to take images that are relevant to the topic I am posting about and use them as background or illustration of the particular topic I am discussing.
  • Finally, there is no negative impact on the value of the work and typically my uses actually promote awareness about the owner.

Circling back to Google books, Google is copying all the books in the world, but I tend to agree with the district court that it is fair use because Google is scanning the books to make them searchable and to provide meaningful indexing for them.  Google's end product is a book search application.  Note that the fair use analysis falls apart if Google sells or gives away a copy of a book without permission.  That last step starts to look more like an airport bookstore full of copied books.

Another fascinating TED Talk created based on fair use of a bunch of those books in the Google Book Project is below.

The NGram Search at the Google Book's Project is here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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