Is it fair use? Check before you file.
Four questions from the four statutory factors. At the end, a written record of your reasoning, which is what the law asks you to have.
- § 107(1)
What are they doing with it?
The purpose and character of the use, including whether it is commercial and whether it transforms the original into something new.
- § 107(2)
What kind of work is yours?
The nature of the copyrighted work. Creative expression is protected more strongly than factual compilation.
- § 107(3)
How much did they take?
The amount and substantiality of the portion used, measured against the whole work and against its heart.
- § 107(4)
Does it cost you business?
The effect of the use upon the potential market for, or value of, the work. Courts often treat this as the most important factor.
The duty is to consider it, not to be right
The most misunderstood part of sending a notice, and the part that can turn a complaint into a claim against you.
A notice states the use is not authorised by the owner, its agent, or the law. Fair use is the law. In Lenz v. Universal the Ninth Circuit held that a sender must consider it in good faith first. It does not have to be right, only honestly considered.
Skipping that step is what 17 U.S.C. § 512(f) punishes: damages, costs and fees for a knowing misrepresentation, against “any person”, agents included.
What we do with this internally
How the factors usually land
These are tendencies, not rulings. Any of them can flip on facts you have not mentioned.
A competitor pasted your product descriptions onto their store
Not fair use. Commercial, wholesale, directly substituting.
A blog quotes two sentences of your guide and disagrees with it
Likely fair use. Criticism with a short quotation.
A scraper republishes your whole article with ads around it
Not fair use. No transformation, commercial, market harm.
A news site quotes your statement in a story about your company
Likely fair use. News reporting is named in the statute.
Someone uses your product photo in a review of the product
Arguable. Depends on how much of the photo and what surrounds it.
A parody account rewrites your landing page as a joke
Often fair use. Parody is the strongest transformative case.
About fair use and filing
Why do I have to think about fair use at all? They copied me.
Because the good-faith statement in a notice says the use is not authorised "by the copyright owner, its agent, or the law". Fair use is the law authorising it. In Lenz v. Universal the Ninth Circuit held that a rights holder must consider fair use before sending a notice. Skipping that step is what creates § 512(f) exposure.
Does a tool decide this?
No, and be suspicious of one that claims to. Fair use is decided case by case by a court weighing all four factors together, and the factors pull in different directions constantly. What this gives you is a structured way to think and a written record that you did.
What is § 512(f) actually?
It makes anyone who knowingly materially misrepresents that material is infringing liable for damages, costs and attorneys' fees. It applies to "any person", which includes an agent filing on someone else's behalf. It is the reason we record a fair-use consideration against every single URL we file on.
They credited me. Does that make it fair use?
No. Attribution is a courtesy, not a licence, and it appears nowhere in the four factors. A full copy with your name on it is still a full copy.
What if only part of my page was taken?
Amount is the third factor, and it is measured against the whole work and against its heart. Taking the one paragraph everything else hangs on can weigh against fair use even though it is short.
I am not in the United States. Does this apply?
The DMCA is US law, and these factors are § 107 of the US Copyright Act. Other countries have their own exceptions — fair dealing in the UK and Canada, for example — which are structured differently and are generally narrower.
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