Imagine that there is a striking image that perfectly encapsulates your brand. Unfortunately, the image is copyrighted. What portion of the image can you use without incurring a legal liability? The answer falls within the rules of fair use.
Fair use is a doctrine of U.S. copyright law. It outlines the legal boundaries of utilizing copyrighted material without the copyright holder's permission.
The fair use doctrine has been codified and refined over many decades of legal precedent. As such, it is not a hard and fast set of rules (1). Whether a work is considered fair use is determined solely by the courts. If a copyright holder believes your application of their material is not fair use, he or she is within right to bring suit. The courts will decide if the purpose qualifies under the fair use doctrine - an often long and expensive process for everyone involved.
The broad categories that fall under fair use are:
Below are a few examples of proper fair use:
Section 107 of the US copyright code describes four factors for determining whether a work is fair use or not (2). They are:
There is no pre-determined percentage of an image, or number of words, or number of musical notes that activates copyright law. Nor does acknowledging the holder of the copyright in your derivative work absolve you from the obligation to seek the holder's permission.
In the vast majority of cases, works used in the furtherance of a commercial enterprise (e.g. advertisements or ecommerce website design elements) do not qualify as fair use.
There are, however, instances where a company's products could be construed as falling within the fair use doctrine. For example, if your company sells t-shirts emblazoned with the face of a celebrity that has been altered for humorous purposes, that purpose might be fair use.
Seek the advice of a lawyer before profiting from any treatment of copyrighted material. Ideally, businesses wishing to utilise copyrighted material always gain permission from the copyright holder first.
An ethical business either finds the copyright holder and pays them for their work, or hires an artist who can create something new.