What Fair Use Actually Is

Fair use is a defense to copyright infringement—not a permission slip. If someone accuses your business of using their content without authorization, a judge decides after the fact whether your use qualifies as fair. You start as an infringer; the defense is what can excuse it.

Courts weigh how much of the work you copied, whether you changed it meaningfully, and whether your use undercuts the original creator’s ability to profit. There is no bright-line test—it is always a judgment call.

Categories That Can Qualify

Commentary and criticism. A YouTube creator who critiques a painting can show the painting while making their points. But running the full work with a few side remarks will not cut it—a court expects substantial, purpose-driven analysis.

News reporting. Reporters can display copyrighted images or short clips to inform the public. The key is limiting use to what the story actually requires.

Parody. You can use a copyrighted work to make a joke about that work, but the parody element must be clear and the transformation meaningful. Courts have repeatedly found weak parody claims insufficient.

Practical Guardrails for Business Owners

Clip only the portion you need to make your point. Add real substance—analysis, side-by-side breakdowns, original commentary—that changes how the audience understands the material. Your use should never replace the need to buy, stream, or license the original.

If viewers can get the same experience from your post that they would from the full work, that is a red flag. A judge will notice.

When to Get Permission Instead

If you plan to use long clips, run ad campaigns around the content, sell products containing it, or republish a large portion of someone else’s work—stop and either license the material or talk to an attorney. Fair use arguments get weaker as commercial stakes rise.

Video Transcript

Why this matters to your business

Aaron Hall: You’ve probably heard the term fair use, especially if you’ve spent any time around content creators or creative teams. But what does it actually mean for your business? In this video, we’ll break down what fair use is when it applies, and why. It’s not a free pass to use someone else’s content. You’ll learn how courts decide what’s fair.

Risk with clips images and audio in business content

And when that YouTube clip image or audio snippet could land you in legal hot water if you’re using or protecting creative content in your business, this is a must know topic. Now, there’s probably one more topic you’re wanting to know about, and that is fair use. What is fair use? You’ve probably heard a lot of creators online talking about fair use.

Fair use is a defense to copyright infringement. So if somebody is using an artist’s work without permission, they are infringing that artist’s copyrights. But there are times when infringement is permitted. In other words, there are times when use is fair. And that’s the fair use doctrine. Keep in mind, fair use is always an infringement of somebody else’s copyright, but under the United States copyright law, there are certain types of infringement that are going to be permitted or certain types of use that’s gonna be considered fair or acceptable.

Permitted infringement explained

So Fair use is simply permitted infringement of somebody else’s copyright. What are some categories? One example is if you are giving commentary or reviewing or criticizing the work of an artist. So for example, if a YouTube creator decides to critique and criticize a painting and is showing that painting and saying how the painter did something wrong.

Using a work while discussing it

On one hand, you clearly have a painting which is created by an artist. We assume there’s a copyright in that painting. So if it was made in recent years, there’s clearly a copyright in that painting. And a copy of that painting is being shown on a digital video as the YouTube creator displays it. So you clearly have infringement of a copyright by showing a copy of that painting on a video.

But when the purpose of the video is to critique or criticize or comment on the painting, whether the creator is saying, oh, this is the painter did this well, or the painter did this poorly. That is considered fair use. So that’s one example of when it is okay to make a copy or use the work of an artist without their permission.

Why covering a full movie likely fails

Now you might be saying, oh, isn’t that interesting? So I could create a video of a movie. I could put myself in that video and comment on that movie from time to time, and that would allow me to freely make and sell copies of that movie. No, there are limits to this, and a court will look at how much of the work did you copy?

To what extent did you take away the financial benefit to the owner of the work, like in this case, a movie production company and how much are you really changing that work of the artist in your effort to provide value on commenting? So if you commented over an entire movie and didn’t play the movie audio, and you just kind of explained what the producer of the movie or the director of the movie or the actors were doing.

That would be commentary and that may be allowed. But if you let somebody basically get the full experience of that movie by having the audio and video fill up the screen and you’re just sitting in the corner occasionally commenting that is insignificant, that is not sufficient to establish fair use.

No bright line and factors judges weigh

So as you can tell, it’s a gray line. There’s not this bright line test. Oh, that’s fair use and that’s not. Fair use is considered by a judge after you’ve been sued for copyright infringement as a defense to why you should be allowed to infringe, and that essentially is because you are making a legitimate good faith use of a part of the fair use law.

News reporting

Let’s talk about some other examples of fair use. The next category is news reporting. When covering the news, reporters are allowed to display images that are copyrighted. The idea here is that we don’t want to stifle or freeze news reporting through our intellectual property laws. We want news reporters to be able to provide the value of reporting to the public without having to pay out money to artists who have created work that ultimately appears in a news story.

Parody

Another category of fair use as a defense to copyright infringement is parody. Parody is a difficult area. It’s a very gray area, but the idea is basically you can create some comedy out of something that is copyrighted. And you’re significantly transforming that work of an artist to create a new form that involves some sort of parody.

And when you do that, there’s some protection here, but this is an area where you have to be really careful. Because courts have often found there wasn’t a sufficient parity element to benefit from the fair use defense. And so parody often is insignificant. If you are trying to claim fair use, you need to have very clear parody and a very clear change in the original work.

Free guide and videos

Of the original artist, if you’d like to know more about how to avoid trouble like this. I have a free resource at AaronHall.com/free. I provide information for business owners of small to midsize companies on how to avoid common legal problems. That includes a PDF. It includes videos talking about important issues.

I’m Aaron Hall. I’m an attorney for business owners and entrepreneurial companies. If you’d like, subscribe to this channel so you can get more educational content like this.