Copyright Fair Use — When You Can Use Copyrighted Material Without Permission

Fair use (17 U.S.C. § 107) is the most important limitation on copyright — it allows you to use copyrighted material without the owner's permission for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is what makes book reviews legal (quoting passages), allows parodies (Weird Al, SNL sketches), enables teachers to photocopy articles for class, permits journalists to quote from copyrighted speeches, and lets search engines display thumbnail images. Without fair use, copyright would stifle the very creativity and discourse it's supposed to promote. But fair use is also one of the most uncertain areas of law — there's no bright-line rule, no specific word count that's automatically safe, no percentage of a work you can freely copy. Instead, courts apply a four-factor balancing test on a case-by-case basis: (1) the purpose and character of the use (commercial vs. nonprofit/educational, and whether the use is "transformative" — adding new meaning or expression), (2) the nature of the copyrighted work (factual works get less protection than creative works), (3) the amount and substantiality of the portion used (less is generally safer, but even a small amount can be too much if it's the "heart" of the work), and (4) the effect on the market for the original work (does your use substitute for buying the original?). No single factor is decisive — courts weigh them all together. The Supreme Court has emphasized that transformative use (adding new purpose, meaning, or message) is the most important consideration — the more transformative the use, the more likely it's fair use, even if it's commercial.

Current Law (2026)

Legal Authority

• 17 U.S.C. § 107 — Fair use (four-factor test: purpose, nature, amount, market effect)
• 17 U.S.C. § 108 — Library and archive reproduction exceptions (preservation, interlibrary loan, replacement copies)
• 17 U.S.C. § 109 — First sale doctrine (right to resell or lend a lawfully owned copy)
• 17 U.S.C. § 110 — Performance and display exceptions (classroom teaching, religious services, certain public performances)
• 17 U.S.C. § 117 — Computer program exceptions (owner of a lawful copy of a computer program may make a copy or adaptation necessary to use the program, or for archival purposes)
• 17 U.S.C. § 121 — Reproduction for blind or other people with disabilities (authorized entities — nonprofit organizations serving the blind and print-disabled — may reproduce and distribute published literary, musical, pictorial, and other works in specialized accessible formats without permission; covers braille, audio recordings, large print, and digital accessible formats)
• 17 U.S.C. § 121A — Marrakesh Treaty accessibility exception (extends the § 121 exception internationally: authorized entities in the U.S. may import and export accessible-format copies with authorized entities in countries that are parties to the Marrakesh Treaty, enabling cross-border sharing of accessible books for the blind and print-disabled)

How It Works

Fair use is a four-factor balancing test, not a formula — courts weigh all factors together and no single factor is dispositive. Factor 1 (purpose and character): Commercial use weighs against fair use but isn't fatal; the key question is whether the use is transformative — adding new expression, meaning, or message rather than merely substituting for the original. Parody is the classic transformative use (Campbell v. Acuff-Rose, 1994, holding 2 Live Crew's parody of "Oh, Pretty Woman" was fair use). The Supreme Court's Andy Warhol Foundation v. Goldsmith (2023) narrowed this: even a distinctive artistic transformation doesn't constitute fair use if the new work serves essentially the same commercial function as the original. Factor 2 (nature of the work): Using factual or published works is more likely fair use than highly creative or unpublished works. Factor 3 (amount used): Copying an entire work generally weighs against fair use, but not always — Google's copying of entire books for search indexing was fair use because only snippets appeared (Authors Guild v. Google, 2015); conversely, copying even 300 words can be unfair if it takes the "heart" of the work (Harper & Row v. Nation Enterprises, 1985). Factor 4 (market effect): Uses that substitute for purchasing the original weigh heavily against fair use, while transformative uses serving different markets typically don't. Common situations that generally support fair use: quotation in criticism and commentary, parody targeting the original work, news reporting, classroom educational use within reasonable limits, search engine thumbnails (Perfect 10 v. Amazon), and time-shifting (Sony v. Universal, 1984). The biggest emerging fair use question is AI training data: multiple lawsuits against OpenAI, Google, Meta, and Stability AI argue that copying copyrighted works to train AI models infringes copyright; Thomson Reuters v. Ross Intelligence (2025) held that directly copying legal headnotes for AI training was not fair use — but the broader law remains unsettled.

The first sale doctrine (§ 109) provides a distinct protection: once you lawfully own a physical copy of a copyrighted work — a book, CD, DVD, or painting — you can resell, lend, give away, or display that copy without the copyright holder's permission. This is why used bookstores, libraries, and garage sales are legal. The first sale doctrine applies only to physical copies you own outright, not to digital content licensed (not sold) to you — which is why resale of digital music, e-books, or software generally isn't permitted.

How It Affects You

If you're a YouTuber, podcaster, or video creator: Commentary, criticism, and review are the strongest fair use cases — this is literally what § 107 lists as the first example. But specific situations have different risk profiles:

Lower risk (more likely fair use):

• Commentary and criticism channels that quote or clip a work specifically to analyze, critique, or mock it — adding substantial new expression around the clip
• Parody that directly targets the original work (Weird Al's "Eat It" parodying Michael Jackson's "Beat It" — using the original song's style to comment on it)
• Review videos that show brief clips to illustrate specific points being reviewed
• Educational explainers that use brief clips to teach about a topic related to the content

Higher risk (less likely fair use):

• Reaction videos that play long clips with minimal commentary — the use substitutes for watching the original
• Background music in streams or videos — even 30 seconds of a recognizable musical hook can be the "heart" of the song; music industry rights holders are among the most aggressive DMCA filers
• "Compilation" videos that aggregate clips without substantial transformation

The DMCA counter-notice process: A copyright takedown on YouTube is NOT a court ruling that you infringed. If you believe your use is fair use, you can file a counter-notification within 10–14 days. The takedown filer then has 10–14 days to file suit — if they don't, your content is restored. Most takedowns for genuine fair use don't result in lawsuits. Find YouTube's counter-notification form in YouTube Studio → Content → Copyright → "I dispute this claim."

If you're an educator, teacher, or academic researcher:

Classroom performance and display (§ 110(1)): In a face-to-face classroom, you can display or perform any copyrighted work — show a film clip, play a song, display an artwork — without permission. This is a specific statutory exception, not just fair use.

Online/LMS course materials (a different analysis): If you post a copyrighted article or chapter to your Canvas/Blackboard course, § 110(1) doesn't apply — you're making a reproduction, not performing. Fair use still applies, but courts have scrutinized college coursepacks. Georgia State University (2022, 11th Circuit) held that making brief chapters available for a semester was fair use when no digital license was readily available at a reasonable price, but became less defensible when a cheap digital license was accessible.

The "Classroom Guidelines": The 1976 Classroom Guidelines suggest copying limits (one article per issue, one chapter per book, max 10% of a work) — but these are not legally binding. They're a safe harbor, not a ceiling. Fair use may allow more in appropriate circumstances, and may allow less in others (don't copy an entire curriculum repeatedly semester after semester).

Research and scholarship: Quoting extensively for critical, analytical purposes in academic writing is usually fair use — the more transformative and analytical the use, the stronger the case. But "I'm a researcher" doesn't automatically make anything fair use. Systematic downloading of large quantities of articles is not fair use even for research.

If you're a journalist or news reporter: Quoting from speeches, government documents, public statements, and newsworthy materials is core fair use. Some specific guidelines:

• Quoting from public speeches: strong fair use for news reporting — even long verbatim excerpts when reporting on what was said
• Quoting from copyrighted creative works for review: generally fair use if proportional and for the purpose of reviewing/reporting on the work
• Photos: Fair use for news photos requires transformative purpose or commentary; simply using a news photo to illustrate a story you're writing may require a license if you could have licensed it from a wire service; the Andy Warhol Foundation v. Goldsmith (2023) decision matters here — the commercial purpose (magazine use) and the availability of the same license were key factors that defeated fair use
• Using social media posts in reporting: courts are still working this out; screenshots of public tweets for news reporting are generally considered fair use, but copying an entire photo someone posted may not be

If you're a software developer or AI company: This is the fastest-moving area of fair use law:

AI training data: Multiple major cases are pending (NYT v. OpenAI, Getty Images v. Stability AI, various class actions) on whether training AI models on copyrighted works constitutes fair use. The core dispute: is copying millions of works to extract statistical patterns "transformative" use that doesn't harm the original market? In Thomson Reuters v. Ross Intelligence (2025), the court held that directly copying legal headnotes to train an AI legal research tool was not fair use — a significant data point against the transformative use argument for AI training. But the law remains unsettled.

Code: The Supreme Court's Google v. Oracle (2021) held that Google's copying of Java APIs to create Android was fair use, emphasizing the functional nature of API specifications and the transformative new context (smartphones) versus the original (servers). If you're writing compatible software, API reimplementation is likely fair use; copying entire program implementations is not.

If you're a consumer or individual user: Two doctrines protect your everyday use of content you legally own:

First sale doctrine (§ 109): If you physically own a copy — a book, CD, vinyl record, DVD — you can resell, lend, give away, or display it without the copyright holder's permission. This is why used bookstores, library lending, and used CD stores are legal. The catch: the first sale doctrine applies only to physical copies you own outright, not to digital content that is licensed (not sold) to you. When Apple or Amazon sells you a digital book or movie, they're licensing it — not selling you a copy — so resale platforms like ReDigi (digital music resale) have faced serious legal challenges.

Personal backups: You generally have fair use protection to make personal backup copies of software or music you legitimately own (§ 117 for software is explicit; other media is less clear). You cannot distribute backup copies even for non-commercial purposes.

State Variations

Copyright is exclusively federal law (17 U.S.C. § 301 preempts most state copyright claims). Fair use applies uniformly nationwide. However:

• State courts may adjudicate related claims (unfair competition, misappropriation of likeness) that interact with fair use
• State educational institutions may have their own fair use policies for faculty and staff
• Some states have "anti-SLAPP" statutes that can protect fair use defendants from frivolous suits
• Artists have separate moral rights protections under the Visual Artists Rights Act (VARA) that operate independently of fair use
• Authors may also have copyright termination rights to reclaim transferred copyrights after 35 years

Pending Legislation

AI and copyright legislation — addressing whether AI training on copyrighted works requires licensing — is actively debated. See Copyright Law and DMCA for related legislative tracking. The intersection of fair use with online platforms also raises questions about Section 230 liability protections and First Amendment speech rights.

Recent Developments

The Supreme Court's Andy Warhol Foundation v. Goldsmith (2023) narrowed transformative use — holding that Warhol's silkscreen of a photograph wasn't fair use when licensed for the same commercial purpose (magazine cover) as the original photo. This didn't overrule transformative use but clarified that courts must consider whether the secondary use has a substantially different purpose from the original, not just a different aesthetic. The Thomson Reuters v. Ross Intelligence (2025) case addressed AI training on copyrighted legal content. Multiple pending cases against generative AI companies (NYT v. OpenAI, Getty v. Stability AI, Doe v. GitHub/Copilot) will further define fair use in the AI context. The Copyright Office has conducted multiple studies on AI and copyright — exploring registration, training data, and output ownership.