What exactly is fair use? When does it apply?

Is This Fair Use? Public Domain, Reposting, and Using Other People’s Content As a Creator

Mar 3, 2023

copyright, legal, Legal Tips, trademark

I’m Brittany Ratelle, attorney for online business owners. I’m here to help you get legally legit. I’ll be your guide to make sure that we can own our businesses in every sense of the word, including doing the not-so-sexy parts like legal. You might be wondering how to use and reuse others’ content in a legal way. We want to make sure that we are qualifying for fair use or that we’re getting the right permission. This allows us to move around as a creator, as a creative, and a modern citizen of the digital economy in a way that is not going to get us in trouble with anyone (including platforms, other actors, and other creatives). Most of all, we want to feel good about ourselves and the integrity and value we’re bringing to our own content creation and brand. 




Disclaimer: While I am an attorney, I’m not your attorney. What kind of attorney would I be without a little disclaimer? Remember that all the information that I share here on all my channels is for informational purposes only. It’s not official legal advice because I don’t know your specific facts scenario about your business. If you have any questions about what you hear about today or want any other resources, make sure you reach out to a competent attorney in your jurisdiction. 


This is part of my foundational series about how to get yourself legally legitimate and protected as a modern online business owner. We’ve talked about contracts, LLCs and S-Corps, alphabet soup, and intellectual property. I break down what types of intellectual property tools there are and how you should be leveraging those to make sure that you’re capturing and protecting all the value in your business


What is fair use?


We’re going to be building on that today by talking about copyright specifically. I  am often asked, what is fair use? What am I allowed to repost? Do I have to get permission? How do I navigate all of these issues? On one hand, some people say everything’s a remix. They say copyright is dead. We live in a digital world, everything’s up for grabs. That’s not exactly true. 


On the other hand, we have people who say you can’t use or share anything online without written permission and that by posting something on Instagram or TikTok, you’re giving up all your rights. That’s not exactly true either. So let’s cut both of these myths and find that nice middle ground. We want that safe ground of managing our risk of having the information so that we can make empowered and informed decisions about how we want to build out our content and our brand to serve people. 


Question #1: What is the Public Domain?


The first question that I often get is, what is the public domain? There is a lot of confusion about this. Let’s start with the basics. Public domain is defined by Copyright Act. There was a Copyright Act that came out in the 1970s. There are a bunch of qualifications on whether something is in the public domain, meaning it no longer has any copyright protection and it’s free to use. The quick answer is that anything that’s published before 1928 is in the public domain. 


That goes by the year of publication. Right now it’s February 2023. Next year, we can bump that up and it will be anything published before 1929. Every year this will keep moving. There’s a really handy chart that Cornell University put out to explain this. If you’re ever confused if the work that you’re interested in using is in the public domain, you can reference this chart


The Copyright Act has changed over time, especially because it’s had lobbying about the length of the copyright. Make sure that you’re getting that right, and you are not relying on the public domain exception when you don’t actually have it. 


The Internet is Not All Public Domain


Many people think that anything on Google image search, is on Creative Commons, or found on the Internet is part of the public domain. That is not right. We want to bust that myth. The public domain is a very specific doctrine and copyright law says these are works that were created so long ago that their author or creator doesn’t get to control it anymore. This means it’s up for anyone to use. You can use it and so can other people. 


It means that you can’t lock down or copyright itself, but you can use these works. This includes great works of literature, art, and music that were produced so long ago that now they’re available for anyone to use. We’re talking about the original works. The recording of that work could still be owned by whoever made the recording of that work.


Don’t think that just because you find a classical music recording that you can do anything you want with it. Don’t be duped that anything you find on a Google image search is available. Be sure you’re going to reputable sources if you’re looking for other works. If you didn’t create it, then you need to make sure you have the permission to use it or that it is truly royalty free from a reputable source. I’ve seen clients of mine get burned before because they thought they were using a stock image or something that was royalty free. 


Check the Details


Maybe the photographer uploaded it as part of a database. Artificial Intelligence (AI) is getting better and better at combing the internet. These bots are looking for uses of this image. If they find it on your website, even on a blog, they can shake you down for a lot of money because it’s copyright infringement. You were using that image and you didn’t have a license. 


Make sure those things don’t rise up haunt you later. Be careful about your royalty-free images or any licenses if you’re using Creative Commons. I think it’s great that we have the Creative Commons system, because it makes you understand what license you’re using and that you’re following the rules. Meaning if you need to give credit, you’re following those rules. It also lets you know whether you can use an image for commercial use or not. 


A Business is a Business


Like it or not, if you’re reading this, you’re probably a business.

Whether you’re a baby business or big business, the law doesn’t care. You are a business.

That means you’re using something for commercial use, and it means you have to put your business owner’s CEO hat on so that you can own your business. This includes knowing the legal consequences of your actions. The buck stops with you for good and bad. 


Let that be empowering to you and not scary. You’re here putting these tools into action so that we can be ready to make good choices in our business. Remember that the public domain includes creative works that were created before 1928. It does not mean anything that you find on Google, social media, or any other sources that are part of the digital economy. Make sure we’re being good stewards and creators and busting any myths that you hear to the contrary that you can use anything online. 


Question #2: What is Copyright Infringement?


Our next common question is, what is copyright infringement? If I give credit to someone, is that copyright infringement? Giving credit does not cancel copyright. That means even if you link, tag, or cite somebody, it does not negate copyright infringement. When someone creates a work under U.S. law, it is their work. They are the creator. They are the baker of the copyright cake. 


You get to decide how you want to parcel out all those slices of cake. In the beginning, you hold all those slices. People don’t get to have those slices unless they have something in writing. For photography, the person who snaps the picture owns the rights to those images, unless you have something in writing saying otherwise. 


If you want to use those images in your business, we need to be thinking about where do those rights go next. They go from the photographer to the influencer, to the brand owner. Or do they go from the photographer to the small business owner, to the creative agency, to the big brand that wanted to use them? Then they go on social media and we give a license to Instagram, TikTok, Pinterest, or LinkedIn. 


In-app Features vs. Copyright Infringement


There is a difference between using in-app features versus doing all this other stuff that’s copyright infringement. If you dig into the terms of Instagram, TikTok, and Pinterest (which I have because this is part of my job), we have all agreed to those terms. You may not have read them in detail, but you clicked a button in order to use the platform. 


These platforms get a license to do certain things with the content that we create and upload to their platform. We don’t give away all of our rights. We’re still the creators of our cake and we still own a lot of the slices. But one of the slices that we are letting Instagram have is the license to share our photos and videos. We are also allowing things to be recycled specifically in features like stories. They are are short-lived and people can using the little paper airplane icon to share your post to their stories. All these features change over time. 


The features and the icons may change. But there is a difference between sharing something with a link to the original post. There is a digital connection to the original creator and their license that they’re getting. That’s different than using a reposting app tool. That’s different than taking a screenshot and putting it on your Instagram post or taking a screenshot and putting it on your website, in Times Square, or the side of a bus. 


Ask Permission


All of those things that I listed are not sharing inside the app. You are not allowed to share in this way unless you have written permission from the copyright owner. As you’re being a content creator and likely a content curator and a content recycler, you’re helping to create community and make connections between content. You want to assemble content for your business and your marketing purposes and sales. We want to make sure that we’re being very careful that we have permission to use the things we are sharing in our business for commercial use.


How do we do this? You simply have to ask. People ask me all the time, are DMs and emails OK? Yes, if that’s all you’ve got, they’re better than nothing. Make sure you’re saving those. I like to have a folder on my phone or on my computer called permissions. If you’re getting permission from someone to share their user-generated content, just take a quick screenshot of it and save it. 


Keep a Record


That way, if you ever have to document it and show proof, you have the evidence. Ideally, we like to have a more formal written contract that talks about what the content is that they can share, for how long, and for what purposes. If we’re getting into more complex or capital-based licensing where we’re putting a lot of money and effort and capital into projects, then we want a more fleshed-out agreement. It should have all the details to make those things really clear what are we paying for and what can we use it for. 


Just remember, credit does not negate copyright infringement. You don’t get to use other people’s stuff without permission. It’s just something we need to accept and move on. We need to make it so that we are having clean processes as we’re creating content and asking permission when we need to. And most people are happy to give it, especially if they want stuff to be shared and you’re going to give credit and tag them. But you need to ask first. 


Question #3: What is Fair Use?


Let’s talk about fair use. Fair use is a little bit like a Inigo Montoya from The Princess Bride when someone says, “Inconceivable!” And he says, “You keep using that word. I do not think it means what you think it means.” This is fair use, especially on the internet. If you’re a creator, you make a lot of cool content. Or you might be remixing from content and doing reaction videos, commentary, and criticism. 


What is fair use? It is something that you have that you should rely on when you are creating and selling your content. Fair use is a part of copyright law. It’s a part of copyright doctrine. But, it’s important to understand that it is a defense to copyright infringement. This means that even if you have fair use, you can be sued for copyright infringement. This can happen if you used someone else’s work, they got mad, and they sent you a cease and desist. It escalated and now they launched a lawsuit. You will likely still need to hire an attorney and it’s going to cost you thousands of dollars to defend yourself and your business, even if you’re right. 

No Guarantees


I want you to understand that fair use is not something that immediately works as a “get out of jail free” card. It is only a defense that you may or may not have, especially since fair use can be a really tricky case-by-case analysis.

Please don’t consider this and think, “Oh, I know automatically it’s fair use. And I should be able to do this from now on and never check in.” 


It’s probably still a gray area. Good copyright or intellectual property attorneys know that we don’t give a fair use analysis unless we have a lot of digging and context about the relationship. Even then there’s usually a caveat saying that these are likely what the court may look at or what a judge or jury may look at. 


Most of the time, we cannot give you a black and white nod of approval or say, “No, you’ll never get in trouble.” Concrete thinking would be really great. Unfortunately, it’s not what most attorneys have to wade through. That’s why fair use can be really tricky. 


Four Factors of Fair Use


A fair use analysis has four factors. They’re based on a sliding scale, and are more like guidelines than actual rules (Pirates of the Caribbean). What are the factors and are they working in your favor?


Fair Use Factor #1: Is it for Profit?


Will I make a profit from this? Is it for commercial use? If I’m going to create a YouTube video and I want to use content of someone else’s, that’s the first question I need to be asking. Am I making money off of this? You might think, this isn’t an ad, so it’s not commercial. No. That isn’t the only way to make money. Because you are monetized on your YouTube channel. 


Someone might think, “I don’t monetize through my channel” or “I’m not running ads” or “I’m not making that much money.” The law doesn’t care. Is it possible that you’re growing an audience through using that? Because of that audience, you are then on the backend going to use the content as a lead magnet for other offerings. Basically, you’re still using your content as a giant commercial. So it is still commercial use. 


Fair Use Factor #2: How Creative Was the WorK You Copied?


Factor number two: How creative was the work you copied versus how factual? This is a weighing test. Imagine we have our lady of justice here and she’s trying to weigh out if the work was more creative or factual. Was it creative writing, music, or video? Or was it more like a chart, a list of ingredients, a recipe, a graphic design layout, or a template? 


It’s not the same as an original creative work that literally came out of you. The more creative the work is, the less likely that you will have fair use to use it. If it’s more factual, the court might cut you more slack. It doesn’t get as much protection.


Fair Use Factor #3: How Much Did You Copy?


Next, how much did you copy? What was the proportionality of the work? I wish I could give you an exact number here. I know this gets thrown around, especially in graphic design, original art, and illustration. People say that we have to change at least 10%. It’s just not true. 


There’s no set number that you have to change. Here’s the thing: we have proportionality, but we also have the heart of the work. So I could look at a Harry Potter book and change a lot of it. Let’s say the main character is still called Harry Potter and they still go to a wizarding school for 7 years and play a flying broom sport called Quidditch. If the things that you did copy are the heart of the work (which sounds like expensive legal analysis because it is), you could still get in trouble. Fair use is not going to be available to you. 


Fair Use Factor #4: What is the Value of the Original Work and Commercial Impact?


Lastly, we need to consider the value of the original work and your commercial impact on it. By putting up a YouTube video, is it likely that there will be a commercial impact on the original work? If I post this episode, will people choose to watch mine instead of paying to go to Hulu and watch the original episode? That’s probably not fair use. Can you see why? Because it’s not fair. You’re hurting the marketability. You’re hurting the commercial capitalistic opportunities for that work. And that goes against the whole doctrine of copyright law, which says, “If you create it, you get to exploit it. You get to make money off it.” 


Otherwise the arts as we know them cease to exist. It’s a really important doctrine. And so all of those four factors would be weighed by a judge or a jury. Again, it’s a defense, so it’s not something I want you to bank on think you for sure have fair use. 


Everyone Else Is Doing It


Even if other people are doing it, there’s no guarantee that there can’t be a sweep or that you could be the unlucky sucker that gets caught based on someone else. There is also part of this analysis that includes parody and commentary. Those are things that are specifically spelled out as usually OK and they get fair use. If you’re a book reviewer, you can show the front of the book and talk about the book. This is just common sense. 


The other part of this doctrine that still changing a lot is transformative use. The law is trying to catch up to the modern economy. And this is looking at whether you took the work and mixed it up enough to create new work. Is it actually changing and transforming what the original work is?


Copyright nerds like me are super excited for the Andy Warhol case, which is supposed to go to the Supreme Court sometime this year. That’s hopefully going to give us a lot of information and some help. We have not had a Supreme Court case on copyright law for a very, very long time. And frankly, it’s really hard to look at these things in the age of the internet and to try to give guidance to our clients about how much is too much. Stay tuned and make sure you’re following with me. I will definitely give a whole debriefing once that case comes out in the legal opinion. 


What About Song Lyrics and Movie Quotes?


Another note here is about song lyrics and movie quotes. I get this question a lot on my Instagram. How can I use song lyrics or movie quotes from other things? Can I put them on a t-shirt or a mug? Can I sell a print in my Etsy shop? 


Because those are short words and phrases, traditionally they don’t get copyright protection. You might be OK to use them. However (you knew there was going to be a however), you need to make sure you’re checking trademark. For example, Taylor Swift is really good at locking down and protecting her brand. She has gone back and trademarked some of her famous song lyrics likely so that she can sell merchandise and no one else can. People won’t be scooping her out of her own merch market. She’s a really smart business woman. 


Question #4: What is the Difference Between Copyright and Trademark?


You need to be making sure that you not only have your copyright hat on, but also your trademark hat on. As you remember from my previous video, audio trademark protects branding and brand assets. Even if something can’t be protected by copyright law, it’s possible that it could be protected by trademark. 


For example, I had a client that was doing something related to The Office (the TV show on NBC Universal). The name of the show and the icon that goes in front of the it is trademarked. So is the name Dunder Mifflin, even though that’s a fictional paper company. And the reason why is because NBC didn’t trademark it at first. There was a merchandise company making a whole lot of money selling Dunder Mifflin stuff. NBC caught on and sent them a cease and desist. They’re not squatting on their trademark rights anymore. But it’s a good reminder that if you have a property that’s part of a bigger work, make sure you’re consulting with an IP attorney. You want to protect it using trademark and copyright the best way you know how. 


What is Fair Use?

I hope this has helped you answer the question, what is fair use? This is a lot of information about fair use and copyright, but these are questions that get brought up all the time. Remember to make sure you have your CEO and copyright hat on when you’re creating a work or when you’re borrowing or getting inspired by other work. 


The safest thing to do is to create the work yourself. If you have to use other work (including photos, video, music, artwork, surface pattern design, illustration, or charts), make sure it’s either in the public domain or that you have a license or permission to use it. Don’t assume that just because you give credit (like you did on your high school English paper), that you’re going to be able to walk off scot-free. We’re not in high school anymore. We’re in the big leagues. 


We are business owners and that means we need to be thinking and have our business hats on. Make sure that you keep following my blog for more legal tips on how to get you and your modern online business legally legit. You can also like and subscribe my YouTube channel and check out my foundational series so that you can make sure you’re getting your foundation, people, brand, and product legally legit and ready to scale.  


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