Fair Use Disclaimer | What it Means and Why It’s Important for Your Business

It's probably not the first time you're coming across the terms fair use, fair use disclaimer, and copyright. But, do you know what they all mean?

At times you might post content that another person copyrights. In such cases, you should put upfront a fair use disclaimer to cushion your site against copyright infringement claims. Copyright content use should fall under the regulations for U.S fair use act disclaimer.

With fair use, you can criticize, comment, or produce a parody of copyrighted content without prior approval by the copyright holder.

Disclaimers are essential in potential liabilities in areas not specified in your privacy policy.

Let's find out more.

Fair Use: What is It?

Fair use is a law provision in United States copyright law that states allowance for limited use of copyrighted content/material without requiring permission from the rights personnel. This includes commentary, criticism, news reporting, research, teaching, and many more.

Fair use copyright law covers the terms and conditions under which one can use the copyrighted content without prior approvals.

The fair use policy allows authors and content creators to use copyrighted content if they address the following:

  • Nonprofit educational purposes
  • Comments
  • Reviews
  • Research work
  • Parody
  • Critics

These are the purposes permitted by copyright statute.

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What is Fair Use Disclaimer?

A fair use disclaimer, also a copyright disclaimer, is a statement that shows you have included unauthorized copyrighted material in your site as per the copyright statute that might otherwise be infringing.

However, you're only allowed to use the material in a transformative way and without a profit-driven motive on the piece of work.

Fair use is stated in Section 107 of the Copyright Act of 1976, allowing one to use copyrighted material for comment, criticism, nonprofit educational use, and research.

Sections of the Fair Use Disclaimer

When writing a fair use disclaimer, ensure you cover the following three factors.

  • Acknowledge that, yes, the content you're using is copyrighted and that you've asked for permission from the copyright holder.
  • Give assurance that your use is within the fair use guidelines.
  • Quote the law. It should include the chapter, section, and a link.
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Fair Use Statutory Factors

The following four factors determine the extent or intensity of fair use:

  • Nature of the original copyright material. The nature, type, or condition of the material you copyright influences its eligibility.
  • The purpose of the use. This describes whether the content has been used for nonprofit purposes or has been used to generate profit.
  • The effects' value. This establishes the degree of damage or influences the fair use has on the value of the original copyright material.
  • The extent of use of the copyrighted material. This describes whether a small portion of the original work was used or a significant part without the owner's knowledge.

Let's have a detailed view of each of them.

Purpose of the Use

You should only use copyrighted work for educational or any nonprofit purposes only. This is what the court considers when presiding over copyright infringement claims.

You'll also be on a safer side if you use the copyrighted work for research work, criticism, and when reporting. However, the motive for all of these activities should be nonprofit ventures.

Sometimes the purpose of use mixes up with the character of the use. You might be intending to use the copyrighted material for nonprofit educational purposes but end up making a profit in the process. This becomes a complicated case.

Nature of the Copyrighted Material

The type and status of the material copyrighted is an essential consideration in the fair use act. The copyrighted material might have been published when you copyrighted it, or it may be private.

It's safer to use published copyright material than unpublished work, as the fair use policy guarantees some protection for the published copyright material.

Regardless of the user's purpose or character, you should avoid making private copyright materials public. If you do so, you must have prior permission from the owner. 

The Extent of Use of the Copyright Material

You can find it hard to determine the extent of use of the copyrighted material. Due to the subjective nature of this matter, it would be best to adhere to caution or, otherwise, common sense.

Using less than one percent of the copyrighted material in your work without permission from the owner isn't alarming, even when using it for profit-making purposes. However, suppose you quote or cite multiple chunks of the copyrighted material in your work without asking for permission from the owner. In that case, the owner can claim a copyright infringement, and you may be charged for the same.

It's always good to give links or citations whenever using copyright material. Using this work without crediting the owner is considered copyright infringement, and you'll be held liable.

The Effects' Value

The value of the effect is determined by considering the profit you get from using the copyrighted material and the degree of damage or loss the copyrighted material has suffered.

This can be challenging given that you use, for instance, very little of the original work, let's say less than 1%, and you generate a lot of profit from it. The owner may file a copyright infringement suit against you, but as noted, monetary value isn't the only considerate factor under fair use policy.

When Should You Use the Fair Use Disclaimer?

You need a fair use disclaimer every time you use copyright work for transformative reasons.

However, you should note that a fair use disclaimer doesn't cushion you from fair use violation or unapproved use of copyright material. The disclaimer only protects you from potential claims of copyright infringement and shows the responsiveness of your actions towards the copyrighted work. It gives acknowledgment that you understand the fair use policy and the law well.

Fair use is a complex topic and requires your due diligence in handling it. When you handle it with less care, the law and the market society will consider your work an infringement of the copyright, and you may end up losing your piece of work or even a website.

The disclaimer comes in to protect you from these risks. It protects you from claims that might bar you from running your business or access to your work.

The disclaimer is more useful in court lawsuits when you are charged for copyright infringement. The court might rule the case in your favor with the disclaimer, provided all the four factors of fair use have been considered.

You should make sure that your use of the copyrighted material is not compromising the fair use policy. The disclaimer will be of no use in such cases as it won't protect you when the work is not transformative. The court will consider this to be an infringement, and you'll be held liable.

How to Write a Fair Use Disclaimer

You should follow the following procedure if you're writing a disclaimer:

  • Acknowledge that the content you're using is copyrighted and whether you've asked for permission from the copyright holder or not.
  • Give assurance that your use is as per the fair use provisions.
  • Quote the law. It should have the title, chapter, section, and a link. (Copyright act, section 107)

As part of the fair use disclaimer, you can also state that your website is for educational purposes only. Doing so cements the acceptable use of the original content. Put the disclaimer is a strategic point so that your users see it with ease (see also End-User License Agreement explained here).

Another alternative to writing a fair use disclaimer everywhere in your copyrighted work is using a disclaimer template. To the template, add your fair use section and link it to your work.

There are also automated fair use disclaimer generators that you can use to write a fair use disclaimer. The downside to these generators is that you're not assured of getting a coherent text. Always add an external link to your copyrighted work for copyright policy compliance purposes.

Disclaimer Templates icon illustration

How to Claim for Copyright Infringement

Respond to notices of alleged copyright infringement that comply with applicable law. If you feel that a piece of work on any website infringes on your copyright, you can claim it to be pulled down. To do so, you're supposed to hand in a written notification to a copyright agent. Note that your infringement claim should be within the stipulated policy and law.

The Digital Millennium Copyright Act (DMCA) stipulates that in the notice, you should:

  • Put your credentials. Add your name, email address, contacts, and address.
  • Your signature is either electronic or physical.
  • Highlight the work you believe to be infringing your copyright work.
  • Highlight the infringed copyright work, or provide a list of several.
  • State assurance that the owner of the copyrighted work does not permit the use of the copyrighted material.
  • Confirm that the information you provide on the notice is correct.

Ensure you meet all the Digital Millennium Copyright Act requirements for your claim to be effective. Failure to do that will see your notice being invalid, and you will subsequently lose your claim.

If the court finds out that you knowingly gave a misrepresentation on copyright infringement, you'll be held liable and will be responsible for all the costs accrued.

Great Seal of the United States

Conclusion

Fair use copyright disclaimer is the only element that will protect you and your article against copyright infringement claims. Whenever you use copyrighted content for a transformative purpose, be sure to add a fair use disclaimer. You should know when to use it and how to write it.

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