Relying on “fair use” presents high stakes. Many players in our industry could not sustain the loss, which could be up to $150,000 in statutory
damages per willfully infringed work, plus attorney’s fees
(yours and theirs) or even more in actual damages, if provable. Yet some seem to regard “copyright” as a two-word
dare: copy right. How much can I get away with? If I’m
caught, I’ll just stop. They don’t always speak those words
aloud, but actions bellow.
My experience is that many roll the dice not from sinister motive, but due to their misunderstanding of fair
use. Primarily, fair use does not substitute for a proper
license. It is a defense in court. Often a losing one. The
verdict hinges on four factors, which are considered on
a case-by-case basis:
Purpose and character of your use. For-profit
weighs against fair use. Transformative uses—new or
unexpected ways—tilt toward fair use, but court results
Nature of the third party’s work. Use of fiction
or other creative works such as movie clips, music, or
photographs weigh against fair use.
Amount and substantiality of the portion you
used. Less is best, but it’s measured proportionally to
the whole, and tiny amounts can backfire if you copy the
“heart” of their work.
Effect of your use on the third party’s market
for their work. For example, telling others’ signature
stories guts their market with that audience.
of Fair Use
What’s right and wrong
with using copyrighted
BY RUSS RIDDLE, JD