Copyright Fair Use Laws: What You Need to Know

Written by Christine Warner on September 6, 2017

You’re finishing up the final edits on your client’s sizzle reel. Without the budget for an original soundtrack, you’re hunting for the perfect tune to accompany the video. Finally, after hours of scrutinizing and getting way too close to the project, you find a track that captures the video’s vibe through its instrumental electronic beat. As you start to download it, you wearily think, “Can I just go ahead and use this? Or do I need to get special permission?” The answer: Get written permission from the creator after confirming its copyright status.

Failing to follow copyright fair use laws for work — such as photos, videos, songs or books — can get you in trouble as a freelance creative. When a piece of work is copyrighted, there are restrictions on how another person can repurpose or reference it. Know the guidelines to protect yourself and your clients from facing penalties, like excessive fines or imprisonment.

All Original Work Is Copyrighted

That perfect sizzle reel track is copyrighted, just like any other tangible piece of work. You should assume that any original work is copyrighted, even if it doesn’t include the copyright notice symbol (©) no longer required for work published after 1989. When in doubt, confirm with the original creator.

According to The United States Copyright Office, this applies to literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual and architectural forms of work. Copyrights can be renewed after the standard timelines, so search the public renewal catalog to confirm copyright status of the work in question.

But There Are Some Exceptions

What if you were planning to play the track as part of a course you’re teaching at a local university? In educational settings, using copyrighted work likely isn’t a violation. When work is used for criticism, comment, news reporting, teaching, scholarship or research, it’s exempt from copyright infringement.

Copyrights can also expire and become available in the public domain for anyone’s use. Any piece of work published after 1977 lasts the entirety of the author’s lifetime and 70 years after death — with certain exceptions. Anything published before 1978 is in the public domain unless marked with the copyright notice symbol.

When a potential infringement is under investigation, the court will consider the volume of the original material used, whether it has a competitive intention and if the original work is directly or indirectly referenced. Make sure you can always validate that you are using work in a non-competitive way with the intent to inform, educate or inspire your audience.

Don’t Fall for Common Copyright Myths

There are some common misconceptions about what does and doesn’t adhere to copyright fair use laws. Keep these in mind:

  • Crediting the source covers your bases: Proper sourcing prevents plagiarism, but doesn’t guarantee that you’ve skirted copyright violation. To do so, you must secure permission from the author or ensure that the copyright has expired. There are no formal methods for getting permission, but try to get written confirmation whenever possible.

  • If it’s out of print, it’s fair game: Even if a publication is no longer being printed, it can still be copyrighted and unavailable for use. The varying year terms still apply to work that’s out of print.

  • Plagiarism is the same as copyright infringement: These are two different violations. Plagiarism is taking credit for another’s work, while copyright infringement is using another’s work without permission.

  • No one will find out: There are automated and software solutions that monitor work for compliance with copyright fair use laws. Even if you’re working on a low-profile project, take all the precautionary measures to prevent infringement.

  • Ideas are under copyright protection: You can incorporate the ideas and concepts that appear in another’s work in your own without fearing infringement. Copyright only protects the physical piece of work.

Want to go deep into the details? You can read the Copyright Act of 1976 for more context. Never assume you can use another’s work without permission. Even if you have the purest of intentions, an innocent slip-up can be costly to you, your client or your career.

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