Fair Use Doctrine - Top 10 Misconceptions
Print this article
Font Size
Fair Use Misconceptions 1 – 3
View ArticleView Article Comments

Misconception 1 – The Lack of a Copyright Notice Means You Can Freely Use the Work

The lack of a copyright notice on a work does not necessarily mean you can freely use that work. While certain older works may have needed copyright notices to protect them, works today do not need copyright notices for them to be protected. What’s a copyright notice?

A copyright notice generally includes:
  1. a copyright symbol "©," or the word "Copyright"
  2. the date the work was copyrighted, i.e. created, and
  3. the owner of the copyright.
For example, this article is protected by copyright with the notice, © 2009 ThinkingLegal, LLC. However, even if this notice was not put on this article, it would still be protected by copyright law (but make it more difficult to prove). That means others that wished to use this article would have to abide by copyright rules, but still may be able to use the article under the fair use doctrine.

So, if you read or see a work, such as an article on the internet, that does not contain a copyright notice, you may still have to abide by copyright rules depending on the work. The owner of the work may have just failed to place a copyright notice on the work. Other works, however, might fall into the public domain. Works in the public domain can be freely used because they are no longer protected by copyright law.

Misconception 2 – If a Work is Copyrighted, There Can Be No Fair Use of that Work.

Fair use only applies to copyrighted material. In other words, if a work is not copyrighted, like if a work is in the public domain, then fair use does not apply. You can freely use public domain works without the original owner’s consent.

Remember, fair use is a defense to the use of copyrighted materials – the work must actually be copyrighted for the fair use doctrine to even apply.

Misconception 3 – If Something Seems Like "Fair Use" to You, a Court Will Also View it as Fair Use

Fair use is not necessarily determined by what you believe to be fair use. Instead, a court will view at least the 4 factors under Title 17, Section 107 of the U.S. Code to determine what constitutes fair use. (These 4 factors are discussed under the article "Fair Use Doctrine.") In other words, a court may come to a different conclusion than you in what is considered "fair use." So, it is generally better to error on the side of caution when evaluating whether a use would be fair or involve copyright infringement.

Next, we’ll go fair use misconceptions 4 through 6.