Fair use for comment, as outlined in the U.S. Copyright Act, allows the use of copyrighted material without permission from the copyright holder under specific circumstances, primarily for the purpose of critical analysis or commentary.
Understanding Fair Use
Section 107 of the Copyright Act explicitly mentions "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, [and] research" as purposes that are favored when determining fair use. However, it's crucial to note that use for these purposes is not automatically considered fair, and uses for other purposes can also be deemed fair.
Key Aspects of Fair Use for Comment
Fair use for comment is not just about saying something about a copyrighted work, it involves using that work in order to make a point or express a view. Here are some key points:
- Purpose and Character of the Use: This considers whether your use is transformative. Are you merely copying, or are you adding new expression or meaning to the original work? Commentary should generally be seen as transformative since you're using it to illustrate a point.
- Nature of the Copyrighted Work: Using factual or published work generally has more leeway than creative or unpublished works. The more creative or original the work, the more difficult it may be to assert fair use.
- Amount and Substantiality of the Portion Used: You should only use as much of the copyrighted work as is necessary for your commentary. Using a small, relevant section is often favored compared to using large portions.
- Effect of the Use on the Market: Your commentary should not harm the potential market value of the original work. For example, summarizing a movie for commentary is different than providing a full copy to replace paying for the movie.
Examples of Fair Use in Commentary
| Scenario | Fair Use Likely? | Explanation |
|---|---|---|
| Using a short clip of a movie in a video essay analyzing the movie's themes. | Yes, if the clip is used to discuss those themes and not as a replacement for watching the movie. | The use is transformative and the effect on the market of the movie is minimal |
| Quoting a few sentences from a book to support an argument in a book review. | Yes, generally, if the quotation is short and directly related to the analysis. | The use is transformative, and the portion taken is considered small and directly relevant. |
| Showing a small part of a photograph when critiquing the photographer’s style | Likely, if it's for analysis and commentary rather than for general viewing of the photo. | The purpose is transformative, and it is assumed the commentary is adding value that goes beyond the photograph itself. |
What is NOT Fair Use in Commentary?
- Copying Large Portions: Copying large portions of a work under the guise of commentary without adding significant transformative value.
- Undermining the Original Work: If your commentary essentially serves as a substitute for the original copyrighted work and negatively affects its market value, it is unlikely to be considered fair use.
Key Considerations
- Fair use is a case-by-case determination and requires an evaluation of all four factors mentioned above.
- There are no hard rules or percentage limits, so it’s important to consider the context of each situation.
- If you have doubts, seek legal counsel to help determine if your intended use is considered fair use.
In summary, fair use for comment allows the limited use of copyrighted materials for the purpose of criticism and analysis, as long as it is transformative, does not harm the market value of the original, and uses an appropriate amount of the copyrighted content.
