Fair Use & Social Media
Without saying too much about the current state of affairs in the world at large, it’s generally a good idea to know your rights as you’re afforded them across spheres of public life. And while it can feel like the internet is one area where the law is yet to fully take hold or catch up with the behaviors most in need of restraint, there nevertheless exists some protection for the average soul posting from their laptop in the comfort of their home.
We’ve previously highlighted the basic precepts of copyright, and how they pertain to what you post online; in short, what you create belongs to you, regardless of the frequency or the audacity of theft perpetrated against you. Proving that ownership and taking action against instances of copyright infringement can be trickier — here is where I note the value of RightsLedger’s content authentication in proving that you are the creator and owner — but you are in the right, and we continue to operate under the guise that that concept still means something and carries weight, even with the biggest tech platforms.
Copyright law can really help the average person with the protections provided under the concept of fair use. A lot of the creative endeavors we enjoy online make use of the works of others, particularly in the fields of criticism or interpretation or adaptation. You can’t pass others’ work off as your own, but you can use it to make something new within the guidelines of fair use. As handed down from on high by the U.S. Copyright Office, here are the considerations taken into account in determining fair use.
Intent and purpose. There is more latitude granted in cases where a copyrighted work is used for the purpose of education and instruction. There’s also space given for transforming existing works into something new and creative, although this example probably doesn’t count.
What’s being used. The ability to transform a work into something new and creative depends on its original state and consideration as a creative work in and of itself; there’s less room for fair use with more creative works than there is for non-creative materials to be made into something new and creative.
How much is used, and its importance. For the purposes of fair use, a creator has a better chance of having that claim upheld if they’re only using smaller portions of the original work in their own creation, and even that isn’t a guarantee of winning a case if they’re taking from a vital part of the original.
How it affects the bottom line. It’s always money in the end, and fair use cases depend on the extent to which a derivative work could potentially harm the value and market for the original.
Meeting any or all of these criteria isn’t a checklist to purchase yourself the shield of fair use; judgments on this matter, like art itself, is highly subjective, taking all the relevant considerations under advisement. But given the propensity for more aggressive social media entities to use copyright claims as a tool to shut down any work that might dare to approach something that comes close to resembling infringement, it’s worth knowing that you have the ability to push back.
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