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Understanding Fair Use

"But it's fair use!"

Any discussion of copyright on the internet usually comes around to the subject of fair use. Some people (usually the owners of the copyright) conveniently forget that fair use exists, or tend to ignore it completely. Other people (usually avid reusers of copyrighted material) attempt to invoke "fair use" as a magic word that excuses any and all appropriation of content. The truth about fair use falls somewhere in the middle of these two extremes.

Fair use is a limitation of copyright law that allows the public to freely use portions of a copyrighted work in certain situations. The internet as we understand it today would not be possible without the doctrine of fair use, and it is an important check on the reach of copyright. However, fair use is not a blanket license to steal content.

Fair use is intended to allow copyrighted material to be reused "for purposes such as criticism, comment, news reporting, teaching, […] scholarship or research." (17 U.S.C § 107) without having to obtain the permission of the copyright owner. But it does not apply universally to any use of copyrighted content. The ideal example of fair use would be a book critic quoting a portion of a novel for review purposes or a scholar including a screenshot from a television show in a media theory textbook.

On Wikia, fair use allows wikis to include small bits of copyrighted material without permission when they are creating resources for that subject. So a wiki dedicated to a video game can generally include screenshots for a level walkthrough, while a wiki about a television show could likely include production stills in a character page. Fair use makes it possible to add content to a wiki when it is impractical (or impossible) to track down the copyright holder and get formal permission. It is not always clear how to contact rights holders and not always realistic for them to consider every possible use of their intellectual property.

Fair Use and Your Wiki

Erie-county-fair-aug-2008

So what does this mean for your wiki? Fair use most commonly comes up in the wiki context when it comes to using images. Although the same analysis applies to both text and images, the nature of most fan sites on Wikia means that things like screen captures, character portraits, and cover art are more common applications of the fair use concept. Wikia is a tremendous resource for criticism, commentary, and research and our wikis cover an incredible array of subjects. The in-depth curation of these subjects is exactly the type of thing that fair use is meant to encourage.

Part of the problem though is that fair use is never explicitly defined in a statute, so it is difficult to pin down. There is no mathematical formula that says "X amount of copyrighted material is fair use, but X+1 amount of copyrighted material is too much."

Instead, Congress has given judges some factors to consider when deciding when something counts as a fair use. Please note that these factors are not exhaustive, and that they can be weighted differently depending on the specific court in question and the context of the specific use. These factors are:

  1. the purpose and character of the use,
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

These factors are notoriously complex, and there is no hard-and-fast rule about how they are interpreted. Because fair use is an ambiguous subject and open to differing opinions that can only be tested in a court of law, Wikia is not able to provide specific advice about whether or not a particular use falls under that umbrella, but there are certain general guidelines that can help you recognize when something is more likely to qualify.

Things to Consider

Generally speaking, the factors boil down to a consideration of how transformative a use is, and whether the use complements or replaces the original work. Some good points to consider:

  1. Does this use illustrate, parody, or comment on the copyrighted work?
  2. Is the article in question more original content than copyrighted work?
  3. Could this article stand on its own without the image or content?
  4. Is the subject of the copyrighted work nonfiction or news-related?
  5. Does the copyrighted work make up only a small portion of the finished article?
  6. Does your use of the image remix or significantly alter the original copyrighted work?
  7. Is the portion of the copyrighted work used only a tiny proportion of the whole?

The more that you are able to answer “yes” to these questions, the more likely that the use will qualify as a fair use.

When users upload images, we encourage them to cite the source of the file, attribute the authors, and note any copyright information, where applicable. Fair use is a generally available option. Individual communities may elaborate upon and refine their own further requirements for image use. We leave it to the wikis to decide for themselves how best to strike the balance between the freedoms fair use can offer and the risk of potential abuse. Some wikis require users to explicitly state the reasons why they think the image qualifies as a fair use while others do not allow the upload of content under fair use and still others place no additional restrictions on their image uploads. All of these are valid approaches. Being able to articulate the reasoning behind fair use is a nice way to make sure that it is being considred, but there is no absolute requirement to do so.

A common misconception about fair use is that providing attribution (aka saying who is the rights holder) automatically qualifies. Fair use would rarely come into play with material that was originally released under the CC-BY-SA  (or similar Creative Commons license) because the nature of these licenses allow reuse as long as the original authors are attributed. For material that falls under general copyright, whether or not you acknowledge the source is largely irrelevant to the fair use analysis. It is certainly the polite thing to do and it fits in with the wiki spirit, but it does not make it a fair use. The same holds true for placing a copyright notice or watermark on the image. While this may make the copyright owner less likely to complain in some cases, it does not create a fair use.

If a copyright holder feels their work has been misused, and files a DMCA takedown notice with us, we are under the obligation to remove the content. There is no way to avoid this on your wiki, but following the provided guidelines and discussing what works for your wiki will help to lessen this. I hope this explanation of fair use provides more clarity and guidance, and if you have advice or questions, please share them below.

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