What should I know about fair use?

When relying on fair use, writers should keep a few things in mind:

  • There may be best practices guidance available to help you make fair use determinations. The Center for Media and Social Impact offers codes of best practices in fair use for various fields, including journalism and poetry, that might be a good place to start. While instructive, remember that best practices guides and similar resources are not legal advice. In all cases, you should always look for reputable, authoritative sources for guidance. 
  • Your fair use determination can always be disputed by the copyright owner. You should consider the risks involved in a dispute, including the risk of litigation, when making a judgment on when to rely on fair use.
  • Even if your use would be considered fair, it may make sense to secure permission from the rightsholder anyway. Permission can sometimes be easy and cheap to secure — if so, it’s a fact that courts are very likely to consider when making fair use determinations.  
  • Acting in good faith supports your case. Being honest and acting in good faith tends to support fair use arguments. Where possible, citing the original works you’re making fair use of and their authors helps demonstrate your good faith.
  • Professional legal advice is often a good idea. Copyright lawyers familiar with fair use court decisions can provide additional guidance on whether a given use would be considered fair and can help in the event of a dispute with the copyright owner. It might be cheaper to consult a lawyer than you realize, and it’s very likely a good idea if you’re intending to make a controversial or difficult fair use decision.
  • Fair use is a normal thing, and an everyday part of many writers’ practices. While familiarizing yourself with the ins and outs of how to make fair use determinations can be intimidating, it’s helpful to remember that many fair uses are unremarkable and uncontroversial: including quotes from books in the context of book reviews, for instance; or providing a copy of a newsworthy image in the context of providing commentary on the image. These kinds of uses won’t always be without controversy—they won’t even always be fair. But they are among the many kinds of fair use that writers make every day without incident, and perhaps without even realizing it.

 

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