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Fair Use - copyright in the US


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#1 decosnapper

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Posted 04 January 2011 - 01:38 AM

A question for the US-based photographers:

Fair Use within US copyright legislation allows the use & reuse of (amongst many) images without payment or permission. My question is this; As I understand it, fair use was established as a principle with guidelines as to what is and is not fair (for both parties) but there was no hard and fast rules about what this actually meant in practice. The result is Fair Use has ended up being determined by the lawyers and court systems. Is this thinking correct?

Just for the record; I'm not criticising fair use, or indeed the US copyright/legal system. All I seek is confirmation or otherwise as to how the system works in practice!

Thanks in advance.
Simon Brown

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#2 TheRealDrew

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Posted 04 January 2011 - 05:57 AM

Fair Use within US copyright legislation allows the use & reuse of (amongst many) images without payment or permission. My question is this; As I understand it, fair use was established as a principle with guidelines as to what is and is not fair (for both parties) but there was no hard and fast rules about what this actually meant in practice. The result is Fair Use has ended up being determined by the lawyers and court systems. Is this thinking correct?


Generally that is correct. In other words (and broad stroke), while some uses are clearly Fair Use (at this point), there is always going to be some use, somewhere by someone, that raises an eye brow, which is when the court and lawyers step in to decide whether such use is a Fair Use. If the lawmakers think the courts made a wrong decision, then the lawmakers will step in to clarify the law or change things, subject to the power of the court to decide whether something is constitutional.

Like many things, laws and codifications are developed over time based on what prior court cases have come up with in the past (in this case fair or not) or what lawmakers want to accomplish. But nothing is ever black and white (or lawyers try to make it that way :dancing: ) and then when the law is in place, people then determine whether something complies with a law (i.e., would be considered fair use) Good description here: Faie Use

How Much Used


How much of someone else's work can I use without getting permission?
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians.


Not sure if that is the information you were meaning?

#3 decosnapper

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Posted 04 January 2011 - 06:26 AM

Not sure if that is the information you were meaning?


Absolutely perfect - thanks Drew.

As an aside, has it lead to a greater or lesser degree of confusion amongst the users? Are there any good examples of "Yes-it-is-fair-use-oh-no-it-isn't" type legal ding dongs - the kind of thing that establishes case law?

I know this is a really broad question.....

And there is a reason behind this. Here in the UK we are set for yet-another-bloody-review-of-copyright by Her Majesty's Government. Watch this space.
Simon Brown

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#4 TheRealDrew

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Posted 04 January 2011 - 07:17 AM

Absolutely perfect - thanks Drew.

As an aside, has it lead to a greater or lesser degree of confusion amongst the users? Are there any good examples of "Yes-it-is-fair-use-oh-no-it-isn't" type legal ding dongs - the kind of thing that establishes case law?


When dealing with any law, there is always going to be confusion and issues. People will go with what they think is probably okay (and many are sincere and not trying to steal) but are in gray areas and they want to get something done and/or uses raise the ire of someone who thinks they have had their rights infringed. Though laws and rules run thousands of pages, there will always be something that is not addressed, or what people think has not been addressed. Then, BAM, into court you go.

Anyway, the following should help some:

Some Fair Use Cases Overviews as part of this Fair Use Overview and also a List Of Cases which links to the underlying documents in many instances. (I think some of them are summaries, have not looked at them all.) But that are some of the leading cases based on my quick scan of which ones were listed. Not sure if any have been changed, vacatedd, etc., but it should be a pretty good place to look.