This week we’re pleased to present a guest post highlighting critical information that business owners should know about fair use laws, written by Ruth Carter, licensed Arizona attorney and owner of Carter Law Firm.
Fair Use vs Copyright Infringement
I regularly get questions about when you’re allowed to use other people’s work without getting into trouble. Unfortunately, there is no black-and-white mathematical equation you can use to answer these questions. Each situation needs to be evaluated on its facts.
Thankfully lawmakers realized that creativity rarely exists in a vacuum and they wanted to encourage people to build on existing works in transformative and creative ways. The copyright laws give each copyright owner the exclusive right to copy, distribute, display, perform, and make derivative works. However, there is also a section of the copyright laws regarding “fair use.”
In a fair use situation, the artist acknowledges that they are copying another’s work but doing so in such a way that is permissible. One thing to remember about fair use is that it’s a defense, not a permission slip. You can always be sued by the copyright holder whose work you used and you will have to demonstrate to the court that what you did should not be regarded as copyright infringement. Some of the questions the court might ask are:
- How did you transform the original work?
- Are you making money off of what you did?
- If someone was looking to buy the original artist’s work, would they accept what you created as an acceptable substitute?
Of course, if you want to avoid being accused of copyright infringement, you can always contact the copyright holder and ask for permission to use their work. It’s rare that anyone says “No” when I ask. In regards to finding images to use on my website, I frequently use images that come with a Creative Commons license. I always look for images that come with permission to modify and commercialize the original.
If you regularly encounter fair use situations, you may want to check out the recent post I did on fair use and fan fiction/art for Phoenix Comicon. It contains a handy mnemonic device for the fair use factors that court will apply in a fair use lawsuit.
This post should only be used for informational purposes. It does not constitute legal advice, and it does not create an attorney-client relationship with anyone. If you need legal advice, please consult an attorney in your community.
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