Fair Use Guidelines

Fair use is a part of U.S. copyright law (17 U.S.C. § 107) that allows limited use of copyrighted work without the owner's permission.

It exists to balance the rights of copyright owners with the public's interest in commentary, criticism, education, and other uses that add something new.

Courts decide fair use by weighing four factors together. No single factor settles the question.

1. Purpose and Character of the Use

Why did you use the work, and did you change it? A use that adds new meaning, expression, or a new message is called transformative, and it is more likely to be fair.

• Transformative use. Commentary, criticism, parody, and education are strongly favored.
• Commercial or not. Commercial use counts against fair use but does not rule it out. Nonprofit educational use is more likely to qualify.
• Good faith. Was the material obtained lawfully?

2. Nature of the Copyrighted Work

What kind of work did you use?

• Factual works, such as news and documentaries, get less protection than creative works, such as music and films
• Using a published work is more likely to be fair than using an unpublished one

3. Amount and Substantiality of the Portion Used

How much of the work did you use, and did you take its most important part?

• Using a small portion is more likely to be fair
• Using the most recognizable or important part (the “heart” of the work) counts against fair use, even if the amount is small
• Using an entire work can sometimes be fair when the purpose requires it, as with parody

4. Effect on the Market

Does your use harm the market for the original, or act as a substitute for it?

• If your work competes with or replaces the original, that counts strongly against fair use
• If your work serves a different audience or purpose, market harm is less likely
• Courts also consider what would happen to the market if similar use became widespread

Fair use may apply to videos like these:

• Commentary and criticism. Reviewing a film, critiquing a music video, or analyzing gameplay with your own commentary added.
• Education. Using clips to teach a concept, explain a technique, or illustrate a historical event.
• Parody. A humorous imitation that comments on the original work.
• News reporting. Brief clips used to report on current events.
• Transformative remixing. A new work that fundamentally changes the meaning or purpose of the original.

A rights holder should consider fair use before sending a notice. A notice includes a statement of good faith belief that the use is not authorized by the copyright owner, its agent, or the law, and fair use is part of the law. A U.S. federal appeals court has held that a rights holder must consider fair use before sending a takedown notice.

Our notice form reminds rights holders of this, and gives them an optional place to explain why they believe the use is not fair. The explanation is passed on to the creator.

Not FlareNetwork. We do not use automated content matching, and we do not rule on whether a use is fair. When we receive a complete notice we have to take the video down, even if the use looks fair to us.

If you believe your use is fair, the counter-notice is how you say so. Your video then comes back 10 to 14 business days later unless the rights holder takes the question to a court, which is where fair use is decided. The process is the same for everyone.

This page is educational and is not legal advice. If you are not sure whether your use is fair, consider talking to a lawyer.