The last thing anyone wants to do on social media is to get into trouble. But trouble on social media can come from more than just cringey or offensive posts. Many users think that “sharing” or using someone else’s copyrighted work on social media doesn’t violate the copyright law because of the oft-misunderstood copyright law exception called “fair use.” There are countless myths regarding this exception especially in the context of the internet and social media that even well-intentioned users fall victim to.
For those who are unfamiliar with the fair use exception, when it applies, it allows a copyrighted work to be used without the need to compensate the copyright owner or get their permission to use the work. There is no bright line rule for determining when use of a work falls within the scope of the fair use exception. In determining whether the fair use exception applies to a particular use of a copyrighted work, courts balance four factors on a case-by-case basis:
- the purpose and character of the use of the underlying work
- the nature of the underlying work
- the amount and substantiality of the portion used, and
- the effect the use has on the actual and potential markets of the underlying work.
Each fair use determination is extremely fact-specific to how a work is being used and there are no hard-and-fast rules. Below are some of the most popular myths that misguide users when posting social media content.
Myth #1: Crediting the copyright owner of the original work on social media makes the resulting use a fair use
This myth about fair use and social media likely stems from the fact that some copyright licenses require crediting the author(s) or copyright owner(s) of the original work (such as various Creative Commons licenses), or that users simply do not understand the differences between plagiarism and copyright infringement and therefore confuse the two. Plagiarism occurs when someone tries to pass off someone else’s work or ideas as their own; it is an ethical violation, but likely does not violate any laws. Copyright infringement on the other hand occurs when someone reproduces, distributes, publicly performs or display, or prepares derivatives works of a copyrighted work without the copyright owners’ permission; it is a violation of the law (unless an exception, like fair use, applies).
While there may be good intentions behind wanting to credit copyright owners on social media (and users should give credit for reasons earlier explained), there’s almost no legal basis for the practice of crediting a creator or copyright owner as a fail-proof method to shield oneself from copyright infringement liability. Just giving the copyright owner credit or a shoutout in the hashtags, tags, comments, or within the social media post itself, doesn’t make an otherwise infringing use suddenly qualify for the fair use exception. In fact, it may actually serve as an admission that a user does not own the work being posted or that they have not obtained a license or necessary permission.
Merely crediting a creator or copyright owner on social media doesn’t convert an infringing use into a fair use. Obtaining permission from the copyright owner to use a copyrighted work on social media is always a good first step because crediting the owner is not enough for the purposes of complying with copyright laws. But even when a use qualifies for the fair use exception and crediting isn’t required, the user usually still credits the creator and/or copyright owner as a common courtesy as a responsible netizen.
Myth #2: It’s fair use if you don’t make money from it on social media
This myth about fair use and social media likely stems from the fact that courts weigh noncommercial, non-profit, and educational uses in favor of a finding that a use qualifies for the fair use exception when evaluating the first factor of the fair use test. But again, this myth ignores the holistic and fact specific nature of the fair use test—and the other three factors that a court must consider. This is especially true when fair use and common social media practices collide because users often see other users making invalid claims that the use of someone else’s content is a fair use simply because they’re not making money off the use of the content– when in reality the use is actually copyright infringement.
Generally, when weighing the fourth fair use factor, a court looks to the effect the use has on actual or potential markets of the underlying work. When analyzing whether a particular use qualifies as a fair use, it makes little difference if a user is not making money from the use of the copyrighted work– what matters much more is the way that use affects the value or markets for the copyrighted work (like a copyright owner’s licensing opportunities). If the use harms the value or market for the work, it is very unlikely to qualify as a fair use—even if the user is not making money from the use.
While commercial uses will almost always result in a finding against fair use, the opposite is not as clear cut. The Supreme Court in Sony Corp. v. Universal City Studios made clear that non-commercial uses do not automatically trigger the fair use exception. In fact, the Court in Sony explained that “Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have.”
Myth #3: Using just a few seconds or snippets of someone else’s copyrighted work qualifies as a fair use
There are no bright line rules on how much of a copyrighted work can be used on social media to qualify for the fair use exception. The myth likely stems from a cursory glance at factor three of the fair use test or maybe social media users heard of “classroom rules” about word limits or percentage amounts of how much of the underlying work can be used before the use “turns into” copyright infringement. But even those “classroom rules” are not actual rules, but rather guidelines that are viewed in context of other considerations such as how the underlying work is being used and what type of work is being used. (If those considerations sound familiar, it’s because they are basically fair use factors one, two, and three.) When evaluating the amount and substantiality of the underlying work used under the third factor of the fair use test, courts will measure how much is being used from the underlying work, both qualitatively (what part of the underlying work is taken) and quantitatively (how much of the underlying work is taken).
The Supreme Court has focused the qualitative test on whether the “heart of the work” is used. In Harper & Row v. Nation Enterprises, the Court weighed the third fair use factor against a finding of fair use by a magazine publisher that used only 300 words of an unpublished version of President Ford’s memoir. The Court found that although the magazine used only a quantitatively small portion of the underlying work, the excerpts used were some of the most significant parts of the underlying work . For social media users, this means that even if a user takes just a small portion of a copyrighted work (even just a couple lines from an article, for example) and that portion was the most important part of the underlying work, then this could weigh the third factor against a finding of fair use.
But as always, the analysis of the third fair use factor and the qualitative and quantitative amounts taken all depends on context and must also be considered alongside the other fair use factors. For instance, in Campbell v. Acuff Rose, the Supreme Court noted that the third factor would likely weigh in favor of a fair use finding because the “heart” of the work (the few seconds of the opening bass riff and first line of lyrics of the song “Pretty Woman”) was necessary to create the recognizable parody song at issue. This highlights that when courts determine how to balance the third factor against the other fair use factors, it will also look at whether the user has used only the requisite amount of the underlying work that was absolutely necessary to achieve the goals of the use. If a social media user takes too much of the underlying work than is necessary, this could weigh this third factor against a finding that the use is a fair use.
It’s important to keep in mind, that while the third factor does look at the “amount” used—with higher amounts generally being less favorable for this factor— “substantiality” of the portion used—i.e. whether it is the “heart” of the work—is also important. There is no simple rule for how much of a work can be used. Again, when in doubt about using a copyrighted work on social media, users should get educated about fair use and/or get permission from the copyright owner.
Myth #4: Any copyrighted works used for the purposes of criticism, comment, news reporting, teaching, or scholarship on social media automatically qualifies as fair use
This is another myth about fair use and social media that is rooted in a shred of truth, but completely ignores the complex nature of a fair use test. Many social media users think that things like reaction videos or other similar content that provide some amounts of commentary or criticism automatically qualifies as a fair use based on a misunderstanding of the copyright law. In fact, to demonstrate this misunderstanding they sometimes go as far as simply copying and pasting 17 U.S.C. § 107 into the description of the posting. These different purposes are specifically listed in the statute which states: “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
Similarly, many social media users think that an infringing use is excused under the fair use exception because the there is an educational component to the social media use. Many infringing posts or videos include texts, images or footage of television programs or other audiovisual works, with users proclaiming that because the content or purpose of the upload is educational, the use is a fair use.
But the fair use exception only lists these activities as examples of what may qualify for the fair use exception; the exception doesn’t establish a definitive list of what automatically qualifies asfair use. A close reading of the law shows that a comprehensive fair uses analysis requires consideration of all four factors. Using a work for one of these purposes may be more likely to qualify for the fair use exception, but merely stating that your subjective intent was to criticize or comment on something does not automatically make something fair use, or even make it objectively true.
Myth #5: Stating “No Copyright Infringement Intended” or “This is Fair Use” on Social Media Makes a Use a Fair Use
This myth likely stems from the fact that many social media users have seen other users simply state or write in their videos, photos, and other content that their use of someone else’s copyrighted works is a fair use or that they don’t mean to infringe on the copyright owner’s rights. But there are no magic disclaimers such as saying things like “no copyright infringement intended” or “no copyright intended” that would shield a social media user from copyright infringement claims under the fair use doctrine. Similar to myth #1, disclaiming copyright infringement may actually indicate that the social media user is aware that the use is an infringement of someone else’s copyrighted works or, at the very least, the user is unsure if their use is infringing. Social media users might also make claims that their use qualifies for the fair use exception or simply copy and paste the fair use statute, but just saying so does not make it so. Simply restating the law or making general claims without a level of reasoning through the fair use test does not suddenly make an infringing use into something that can be considered as a fair use.
There is nothing in fair use law that either requires users of copyrighted works to use any special disclaimers or automatically qualifies an infringing use as a fair use if the social media user makes any statements about fair use. That is because the determination of whether a use is deemed a fair use totally depends on making a balanced determination of the four fair use factors. If a user ever has a doubt about whether they are infringing a copyrighted work on social media, it is best practice to do a bit of digging to learn more about copyright law, infringement, fair use, and other exceptions in copyright law. And if still in doubt or if a license is needed, a good step would be to simply ask the copyright owner for permission to use their copyrighted work. But again, just saying a couple of magic words does not make otherwise infringing uses into something that can be deemed a fair use.
The reality of the social media world is that copyright infringement happens every day. Unfortunately, these infringements often come from users who intended to abide by the law but have been misinformed about how they can use copyrighted works on social media platforms. Claiming that the fair use exception applies to a certain post on social media is not a get-out-of-jail-free card, and fair use may not mean what users think it means. Each fair use factor must be weighed in each specific use to determine whether the use is fair or not.
Whenever social media users are in doubt, it’s best to take a bit of time to learn more about things like fair use instead of just relying on what’s been popularly done or spread around on the internet by other social media users. When in doubt, obtain permission or check with the copyright owner, or get a license from them. You can never go wrong if you know that you have the right permissions in place to upload or use someone else’s work.
The Copyright Alliance has many resources on finding copyright owners and information on how to legally license content for platforms such as blogs. The U.S. Copyright Office also has as Fair Use Index to keep track of the latest fair use cases. We also provide informational videos about fair use in general and you can read our other blogs as well to learn more on our Fair Use Week 2022 page.
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