How to Write a Fair Use Disclaimer You Can Safely Rely On
A lot of content is created and shared on the Internet every day. From memes to humoristic videos, music clips, and poems, to commentary and news reports, it sometimes seems like sharing other people’s work has become the norm and that nothing is off-limits.
However, that is not the case. Copyright laws exist and not everything is permissible. If you are using someone else’s work you may wish to read on to learn more about how you can protect yourself by using a fair use disclaimer.
Expert tip: Take the hassle of writing your own disclaimer away with our disclaimer generator. It will save you hours of work and possible costly legal mistakes.
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What Is a Fair Use Disclaimer?
A fair use disclaimer is a short statement that serves to inform the public that you recognize that some of the copyrighted content used on your website or video is not yours but that you consider that your use of said copyrighted work is legal, as it falls under the doctrine of fair use.
The Fair Use Doctrine
Fair use is a concept rooted in United States Copyright laws, more specifically Title 17, Section 107 of the United States Code, that strives to strike a balance between protecting individual intellectual property and promoting freedom of expression.
Similar doctrines have been adopted and adapted by many jurisdictions worldwide — fair use is an ever-evolving concept as technology makes the sharing of information easier and our world more global than ever.
In Section 107 of the Copyright Act, legislators have provided for some very specific circumstances under which one may use someone else’s copyrighted work without first requiring their consent nor raising any copyright infringement concerns.
The following are examples of activities that could be considered fair use under that section of the law:
- News reporting
However, in order to be able to determine if a certain activity can be considered fair use, one must consider the following four factors on a case by case basis:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
Generally speaking, it would likely be easier to prove that copyright is not infringed if the work is used for educational purposes or to promote innovation and creativity by introducing a new concept or adding on to the copyrighted work - which would be considered transformative and thus help in making a successful fair use argument.
2. The nature of the copyrighted work
Copyright law puts great importance on protecting original art and creative works so it might be harder to argue fair use, while sharing facts or science, such as research papers, is beneficial to the public.
Along the same lines, except in some rare circumstances, using unpublished work would hardly be considered fair use as it would have a significant impact on the copyright owner.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
This is a very circumstantial factor as both quantity and quality have to be evaluated to determine if the use is fair or not in the context.
4. The effect of the use upon the potential market for or value of the copyrighted work.
If your use of copyrighted materials affects the earning potential of the copyright owner, if you were selling prints of original paintings without having the artist’s permission, for example, you would be hard-pressed to find a court that will side with you.
When asked to weigh in on a copyright infringement complaint, courts will look at the above-mentioned factors as well as the extensive case law that was developed over the years to account for situations and circumstances that were not specifically considered when the law was enacted, like recent technological developments, for example.
Determining if an activity or use falls under the doctrine of fair use should not be taken lightly; if you are not convinced that the way in which you are using the copyrighted materials is legal, you should most likely contact the copyright owner to seek their approval and, at a minimum, include a fair use disclaimer.
Why You Need a Fair Use Disclaimer
If you own a website, a podcast, or a YouTube channel and are quoting someone’s work, using their music or one of their videos or any work that they own without having first requested their express consent, you should include a fair use statement. That is, of course, if you believe that what you are doing falls under the fair use doctrine as seen above.
By being forward and informing your readers that the materials used is not your intellectual property but that you did not seek permission from the rightful copyright holder before using it as you deem your usage to be fair use, you may well be lowering your chances of being faced with a copyright infringement lawsuit as you are assuming responsibility and acknowledging that part of the work is not your own.
Why? Because recognizing that the work is not yours could facilitate communication with the copyright owner should they be unhappy with your use of their work; it can act as a deterrent and open up communication channels other than the courts.
However, having a fair use notice on your website is not a magic solution and will not protect you from being served with a copyright infringement lawsuit and having to pay damages if your use doesn’t fall under the fair use doctrine and thus violates someone’s copyright.
You should always be careful when using work that is not your own as it poses a risk, particularly if what you do with their work could offend them or affect them financially. Even if, legally, your activity would potentially fall under fair use if your case was put in front of a judge, you may wish to exercise discretion to avoid a lawsuit and its associated costs.
Where To Display Your Fair Use Disclaimer
Where to display your fair use notice will depend on what type of media the copyrighted content appears on. However, one thing is certain, it should be prominent.
If you own a website on which you frequently share excerpts of copyrighted content, you may wish to include general fair use notice in the legal section of your site and make it easily accessible by adding a hyperlink in your website footer.
A fair use of YouTube disclaimer can often be found in the video description or in the first few seconds of the video. This is good practice if you do actually believe that you are not infringing on anyone’s copyright and take the time to draft an appropriate disclaimer citing fair use as justification.
However, similar to how having a fair use notice on your website will not guarantee that you will not receive a copyright infringement complaint, having one in your video will not prevent anyone from submitting a DMCA takedown notice to a service provider, such as YouTube — even though it could serve as a reminder to copyright holders that they should consider the fair use doctrine prior to sending a takedown notice.
Fair Use Disclaimer Examples
Hit Songs Deconstructed
Hit Songs Deconstructed is a platform that offers songwriting analysis and trend reports. Its mission is to help music industry professionals by supporting their creative process through data. As such, the platform consists of a database filled with hit songs and information about them. By browsing through it, you can select a song and actually listen to audio clips as well as watch the official music videos.
Here is how Hit Songs Deconstructed displays its fair use notice in its website footer:
Clicking on the words “Fair Use Notice” brings you to a page where one can read through the full disclaimer:
As you can see from the above, Hit Songs Deconstructed justifies its use of copyrighted materials by emphasizing the fact that the content is made available through its platform for educational and informational purposes only.
Oregon Center for Public Policy
The Oregon Center for Public Policy is a non-profit organization that aims to make political, economic, and tax issues understandable to its citizens and adequately advocate for them in front of stakeholders, which it does through its research, analysis, and communication efforts and collaboration with lawmakers.
The following disclaimer appears on its website in reference to a specific article:
Again, this is a fairly standard disclaimer notice in which the Center specifies that the article is made available to advance the understanding of public policy, which it deems falls under the doctrine of fair use.
Starr Commonwealth is a global organization that caters to both children and adolescents that are victims of trauma by offering community-based programs and educational and behavioral health services as well as to the professionals that help them by providing the latter with training resources and certifications, both in-person and online.
The organization links to its fair use notice in its website footer:
This is a bit more detailed than the previous disclaimers and vulgarizes the concept of fair use by providing a definition and highlighting the fact that it is an important concept, especially for online non-profit and educational projects such as theirs.
You will also note that, on this same page, the organization includes its DMCA takedown notice process and includes the contact information of its copyright agent.
How to Write a Fair Use Disclaimer
Most fair use disclaimers use similar language, as can be observed in our examples above.
At a minimum, your disclaimer should state that you are aware that your website contains copyrighted materials which you are using without having obtained prior authorization of the copyright owner.
If you have any doubt or concerns regarding the legality of your activities or your use, you may wish to consult a lawyer before sharing copyrighted content.
And if you are simply looking for an easy and quick solution to help you draft a fair use notice, give our disclaimer generator a try.
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- Updated on December 9, 2020