Fair use is a federal copyright doctrine (17 U.S.C. § 107) that allows limited use of copyrighted material without permission. It's an affirmative defense to copyright infringement, not a positive right — you may still get sued, even if you ultimately win.
The four fair-use factors
Section 107 of the Copyright Act: 1. Purpose and character of the use:
- Commercial vs non-commercial
- Transformative vs merely reproductive
- Educational, news, criticism, comment, scholarship, research
- Parody (often fair use)
- Satire (less protected)
2. Nature of the copyrighted work:
- Factual/informational (more fair-use friendly)
- Creative/expressive (less)
- Published (more)
- Unpublished (less)
3. Amount and substantiality of portion used:
- Quantity used (small portion better)
- Quality (heart of work matters)
- Whole works sometimes OK (e.g., images)
4. Effect on potential market:
- Often most important factor
- Does use substitute for original?
- Does it harm licensing market?
- Mere criticism not market harm
- Even hypothetical market matters
No factor is dispositive — weighed together.
Transformative use — the key concept
Modern fair-use focus:
- Adds new expression / meaning / message
- Different purpose than original
- Creates something new
- Doesn't merely supersede original
Strong transformative examples:
- Parody (Campbell v. Acuff-Rose, 2 Live Crew "Pretty Woman")
- Documentary using clips for criticism
- News commentary
- Educational analysis
- Search engine indexing (Perfect 10 v. Amazon)
- Reverse engineering (under specific tests)
Weak / not transformative:
- Verbatim copying
- Substituting for original
- Mere repackaging
- Aggregation without comment
- Decorative use
Recent landmark — Warhol v. Goldsmith (2023)
Supreme Court ruling:
- Andy Warhol's silkscreen of Prince photo
- Used for Vanity Fair magazine cover
- NOT fair use
- "Same essential commercial purpose" as original
- Transformative meaning ALONE not enough
- Must be transformative purpose / character
Practical effect:
- Even artistically transformative use can fail
- Commercial purpose + similar use = often not fair
- Especially in licensing markets
Common fair-use scenarios
News reporting / criticism:
- Quoting articles, news clips
- Generally protected if reasonable amount
- Commentary + criticism strong
- Even unpublished works sometimes OK
Educational use:
- Classroom display
- Course materials
- Generally protected if non-commercial
- TEACH Act adds protections
- Library uses (108) parallel
Parody:
- Comments on or ridicules original
- Strong fair-use protection
- Distinguished from satire (uses original to comment on something else — weaker)
- Must be recognizable comment on original
Research / scholarship:
- Academic articles
- Generally favored
- Especially with proper citation
- Substantial quoting often OK
Commentary / criticism:
- Reviews, op-eds, blogs
- Strong fair-use protection
- Quoting to criticize protected
Time-shifting / format-shifting:
- Recording TV shows for later viewing (Sony v. Universal)
- Personal use copies
- Limited applicability now (streaming)
Search engines + indexing:
- Thumbnails (Perfect 10 v. Amazon)
- Snippet display (Authors Guild v. Google)
- Indexing for discovery
Reverse engineering:
- Software interoperability (Sega v. Accolade)
- Limited circumstances
- Specific tests apply
Areas of high risk
Photo / image use:
- Most photos copyrighted
- Stock photos require licenses
- Even "free" sites have terms
- Watermarks don't make it fair use
- Old photos may be public domain
Music sampling:
- Generally NOT fair use
- Bridgeport Music v. Dimension Films — even small samples need license
- Multiple licenses needed (composition + recording)
- Some circuits more flexible
Video / film clips:
- Often not fair use
- Documentary clips require licenses typically
- Even short clips can be infringement
- DMCA takedowns common
Movie posters / album art:
- Often not fair use
- Decorative use weak
- Discussion + criticism stronger
Fan fiction / fan art:
- Sometimes OK, sometimes not
- Non-commercial helps
- Transformative helps
- Don't use trademarks
- Limited safe harbors
Online reproduction:
- Sharing articles in full = bad
- Quoting + linking = better
- Memes can be infringement
- DMCA takedown risk
DMCA + safe harbors
OSPs (online service providers):
- DMCA Section 512 protections
- Safe harbor for hosting platforms
- Notice + takedown procedure
- Counter-notice option
- DMCA agent registration
For users:
- Counter-notice if claim wrong
- 17 USC § 512(f) — false claims actionable
- Lenz v. Universal — must consider fair use before takedown
Public domain — no copyright issue
Truly free to use:
- Pre-1928 US works (as of 2024)
- Federal government works (typically)
- Works expressly placed in public domain
- Works that lost copyright (rare for new works)
Always changing — Copyright Term Extension Act + others.
Licensing alternatives
Often cheaper / safer than fair use:
- Direct licensing — contact rightsholder
- Stock photo / music — licenses for nominal fees
- Creative Commons — free with attribution / restrictions
- Royalty-free — pre-cleared for specific uses
- Public domain databases
- Editorial-use licenses (often cheaper for news)
Risk management
For commercial users:
- License when uncertain
- Document fair-use analysis
- Insurance covering IP claims
- Indemnification from contributors
- Trademark vs copyright distinction
- Right of publicity issues
For platforms:
- DMCA agent registration
- Notice + takedown processes
- Repeat-infringer policy
- Safe-harbor compliance
Common myths
Wrong:
- "Crediting = fair use" (NO)
- "Non-profit = fair use" (only one factor)
- "30 seconds / 30 words = fair use" (NO bright lines)
- "Disclaimer makes it OK" (NO)
- "Available online = free to use" (NO)
- "Old works = public domain" (depends on date)
- "Educational use always fair" (NO)
- "For comment / criticism always fair" (factors apply)
Defenses to infringement claims
Beyond fair use:
- License (express or implied)
- First-sale doctrine (physical copies)
- Statute of limitations (3 years)
- Independent creation (no copying)
- Failure to register (limits damages)
- Innocent infringement (limits statutory damages)
- Sovereign immunity (limited)
- Estoppel / acquiescence
- Misuse of copyright
Damages exposure
Statutory damages:
- $750-$30,000 per work (regular)
- Up to $150,000 per work (willful)
- Per work, not per use
- Multiple works = multiplied
- Severe penalty exposure
Actual damages:
- Lost licensing fees
- Lost profits
- Defendant's profits
Plus:
- Attorney's fees (sometimes)
- Injunction stopping use
- Destruction of infringing copies
When in doubt — license
License is almost always cheaper than:
- Defending lawsuit ($50K+)
- Statutory damages
- Attorney's fees
- Injunction disrupting business
- Reputation damage
What you should do
If you're considering using copyrighted material in South Dakota: do a fair-use analysis (or have an attorney help) before commercial use. License when in doubt — usually cheaper than defense. For platforms, register DMCA agent + implement notice/takedown. South Dakota IP attorneys handle copyright; many offer flat fees for analysis ($1,000-$3,000).
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This guide is general information about US federal copyright law as of mid-2026 and is not legal advice. Fair use is fact-specific. Talk to a licensed copyright attorney about your specific situation.