In a previous blog post, I addressed the question of when you need to get permission to use a copyrighted image – see my February 22 post “When do I need permission to use a picture I found online?” Before you use an image, you first need to determine whether the image is under copyright. If it is, you either need to get permission to use the image from the copyright owner, or you need to determine if there is an exception from copyright protection for your intended use.
There are several exceptions to copyright which may apply. There are exceptions that allow libraries to make preservation copies and owners of a tangible copy to resell that copy (think used books or records) or to display it publicly (think museums and art galleries). However, by far the most important exception to copyright protection is “fair use.”
Fair use is an exception to copyright protection which allows someone other than the copyright owner to use a copyrighted work without permission so long as that use is “fair” – that is, the use satisfies a four-factor balancing test contained in the US Copyright Act. The fair use exception recognizes that sometimes it is essential to use copyrighted material to create new works and to foster cultural and creative expression. You might describe it as a First Amendment escape valve: It recognizes that the exclusive monopoly granted to inventors and creators in the US Constitution are limited by the competing constitutional right of freedom of expression under the First Amendment.
The four-factor test includes consideration of the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the use, and the impact of the unpermitted use on the market for the copyrighted work. Of key importance is the context in which the copyrighted work will be used in the new work – central to this analysis is the question of how and why the copyrighted work will be used without permission.
Fair use is ultimately a judicially applied “rule of reason.” Determining whether a given use is “fair” requires a careful analysis of the proposed use considered in light of the statutory factors and applicable case law. If you want to use a copyrighted image without permission from the copyright owner, you should consult with an attorney experienced in copyright fair use. The attorney can help you to assess the risk of using the copyrighted work, and how to determine whether your intended use would be considered a “fair use.”