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Fair Use Misconceptions 7 – 9
Misconception 7 – As Long As I Don’t Use the Copyrighted Work for Profit, It’s Fair Use
Not necessarily. If you use another’s copyrighted work and make no money off of it, you may still have committed copyright infringement. For starters, a judge would want to know whether you intended to make money off the copyrighted work. If you intended to make money, but failed to do so, the judge may be more likely to find that you committed copyright infringement. If you did not intend to make money and, in fact, did not make money off the copyrighted work, a judge may be more inclined to find fair use of the work. Still, whether you profit from a copyrighted work is just one factor in determining whether you’ve committed copyright infringement.
As another example, if you let the general public use a copyrighted material for free that would have otherwise cost money (e.g. to purchase from the copyright owner), you’ve essentially stolen money from what the copyright owner could have made. A judge would likely count this against you and be more willing to find copyright infringement.
Misconception 8 – The Less Words You Quote, the More "Fair" the Use
Sometimes this is true, but not always. Often people think that if they only quote a small number of words, e.g. 40 words, then the quote automatically constitutes fair use. While this may be true under many circ*mstances, there are other circ*mstances where this is not true. For example, if you quoted 15 words from a 40 word poem, you may have committed copyright infringement. In contrast, if you quoted 15 words from an 180,000 word novel, it would more likely be considered fair use – depending on how you used those words and the importance of the quote.
So, keep in mind that just because you use fewer words in a copyrighted work, that does not necessarily mean you’d be protected under the fair use doctrine.
Misconception 9 – Once Fair Use is Determined You’re Free to Keep Using the Work under the Fair Use Doctrine
Fair use is not a static concept. In other words, the definition of what constitutes fair use changes with time and circ*mstances. That’s because if you’re using a work under the fair use doctrine today, that same use of the work at a later time might not still be considered fair use.
For example, assume you quote a small excerpt from a movie that’s considered fair use today. Then, a year later that movie becomes very famous. Everyone knows that movie and people start buying all kinds of souvenirs, including shirts with the quote you used. Now, there’s a good likelihood that you could not use that quote under the fair use doctrine, and may be committing copyright infringement.
So, just remember that the definition of fair use does not remain constant.
Next, we’ll go over the 10th fair use misconception.
