Can you profit from copyright fair use? Here’s what you should know if you plan to use someone else’s copyrighted material for commercial purposes.

You see it all the time without even realizing it. That photocopied handout of your teacher’s textbook in college, that viral parody of a hit song making its rounds on the internet, that YouTube video commentary on the most recent best-selling thriller—all of these examples often fall under the fair use doctrine, which grants individuals permission to use copyrighted material under certain circumstances.

Copyright law can be confusing for the uninitiated. Are you wondering whether you need to obtain permission before creating content that you plan to profit from? Here’s what you need to know to get started.

What is copyright fair use?

Fair use allows individuals to use a copyrighted work without obtaining permission when the use is considered commentary, criticism, teaching, news reporting, scholarship, or research. The reason fair use is so important for content creators is that it allows them to defend themselves if they are sued for copyright infringement.

Not all uses of copyrighted works for the above purposes qualify as fair use, so it is critical to know the criteria that the courts use to determine fair use for every case.

The 4 Factors of Copyright Fair Use

According to Section 107 of the U.S. Copyright Act, fair use is determined by these four factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

4. And the effect of the use upon the potential market for or value of the copyrighted work.

Let’s look at some examples for each factor.

1. The purpose and character of the use.

Before using copyrighted material to create new content, consider the purpose and character of how you are using the original work. Are you using it for educational purposes? Or does your use have a commercial purpose?

Commercial use does not automatically make the use copyright infringement, but it is an important deciding factor.

2. The nature of the copyrighted work.

How creative and original is the original work? If the copyrighted work is factual information, you have a better chance of being granted permission under fair use.

3. The amount and substantiality of the portion used.

How much of the original work are you using? Some music sampling falls under fair use because the new piece of music only uses a few seconds from the original song.

4. The effect of the use upon the potential market.

If the content you create damages the potential market for or value of the original work, you may not be granted permission under fair use. Let’s say you create a digital painting based on a copyrighted photograph. If the copyright holder brings a case against you and proves that your work is currently affecting the market for their work, or that your work even has the potential to affect the market, the court will probably side with the copyright holder.

Can you profit from fair use of copyrighted materials?

As you can see, fair use can be a complicated subject that depends on a number of factors. While you can profit from work that incorporates the fair use of a copyrighted work, it can come back to haunt you. It is usually best to obtain permission from the copyright holder before creating new content based on protected material.If you have any questions about copyright law or need to discuss a legal matter, please contact the Saltiel Law Group today.