Why We Love Fair Use

by Ruth Vitale, CreativeFuture CEO

Sometimes people say we are opposed to fair use. They are wrong. We love fair use!

We’re going to tell you why, but first we’ll explain what fair use is. Fair use is a fundamental principle of the law that ensures copyright lives up to its original mandate — to promote the production and dissemination of expressive works that enhance and advance culture.

Fair use allows people — like you, like us — to create new works that use portions of other, previous works, as long as we use those works fairly. We can quote, review, parody, remix, report, educate, adapt, and inform using parts of other works. Fair use allows a film critic, for example, to include short clips or screenshots in their review and allows an artist to build upon previous artwork by remixing and transforming it.

The Supreme Court has described fair use as an important safeguard of the right to free speech — a fundamental, sacrosanct right provided by the Constitution. Fair use is an important part of our copyright system — in fact, Congress wrote it into the Copyright Act in 1976. (Here it is, in Section 107.)

We love fair use because all creativity is a “dialogue,” or an interchange of ideas and inspiration from one artist to another. Fair use is a uniquely American concept; it protects both the original creator and creators who fairly use parts of others’ works. Fair use is a fundamental principle of freedom of expression. And that is the core of creativity.

We steadfastly believe in the value of creativity — and are puzzled when we hear some people say: “’Fair use’ is the opposite of ‘copyright.’” It is simply not true. We also get puzzled (and angry), when some people say they can use anything they want from someone else’s work and call it “fair use.”

Because not all uses are fair.

The boundaries are ambiguous, and necessarily so, because creativity doesn’t fit neatly into a box. Recognizing that it would be impossible to spell out precise parameters for fair use in the law, Congress opted instead to provide four broad principles that courts must consider to determine whether a particular use is fair:

(1) the purpose and character of the use;

(2) the nature of the work being used;

(3) the amount of the work used; and

(4) the effect of the use on the market for the copyrighted work.

Because the factors are necessarily broad, figuring out whether a particular use is fair can be tricky, with well-qualified copyright lawyers often in disagreement about particular cases. While this uncertainty can be frustrating, it’s also what gives courts the flexibility to adapt fair use to specific creative works, especially during a time when digital technology has advanced so far as to make copying a work quick, easy, and infinitely shareable.

Most professionals who regularly use works within fair use guidelines (such as journalists or documentary filmmakers) are sufficiently well-versed in the legal boundaries, so they rarely invite conflicts with copyright holders. But, the fact remains that figuring out what is (or is not) fair can sometimes be difficult.

Unfortunately, many “free and open” internet advocates have taken the inherent ambiguity in fair use cases to advance their agenda of weakening copyright protections for creatives. For example, a recent column by The Hateful Eight producer Richard Gladstein observes that Google continues to exploit a general misunderstanding of fair use to preempt better collaboration with creatives in protecting their rights on its platforms.

More generally, the bellyaching by Big Tech and their mouthpieces about fair use “rights” has created the impression that if you’re “for” copyright protection, then you’re necessarily against fair use. Nothing could be further from the truth! Indeed, creatives who rely on copyright themselves very often make fair uses of works in the creation of their own, new works.

The issue with fair use is that Big Tech is trying to slowly expand the boundaries through carefully crafted litigation strategies such that the exception will eventually swallow the rule. Big Tech tries to cast copyright protection as some sort of opposing force to fair use. Quite simply, it isn’t. Fair use is just as integral to a robust copyright system as exclusive rights.

So, does CreativeFuture like fair use? No.

We love it!! — just as we love advocating copyright protection for the hard work and creativity that goes into the expressive works that form the fabric of our culture.

#StandCreative!

To learn more about CreativeFuture and our mission, click here.

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