Is it fair use? How to tell before you file a takedown

What fair use is

Copyright gives you control over how your work is copied and shared. Fair use is the exception. It lets other people use parts of your work without asking, for purposes like commentary, criticism, news reporting, teaching, research and parody.

There's no checklist that makes something automatically fair use. If it's ever disputed, a court decides by weighing four factors. That's why fair use is a judgment call, not a yes-or-no rule.

The four factors, in plain English

1. Why and how they used it

Did they add something new, like commentary, criticism or a different purpose? Or did they just repost your work? Uses that transform the original weigh toward fair use. Commercial use doesn't rule it out, but it counts against it.

2. What kind of work it is

Creative work, like photos, art, music and fiction, gets more protection than factual work, like news facts or data.

3. How much they took

A short clip or quote to make a point leans toward fair use. Your whole photo, video or article leans against it. Taking the most important part, even if it's small, can also count against it.

4. Whether it hurts your market

If their use replaces yours, so people get your work from them instead of you or your licensing loses value, that weighs heavily against fair use.

Usually fair use vs usually not

Often fair use

• A reviewer shows short clips of your video while critiquing it.
• A news story quotes a few lines from your post.
• A parody that comments on your work by imitating it.
• A teacher uses a small excerpt in class to explain a point.

Usually not fair use

• Your full photo reposted on someone else's site or account.
• Your whole video re-uploaded, even with a "no copyright intended" note.
• Your product photos used to sell someone else's products.
• Your articles copied onto another blog to earn ad money.

Fair use myths

• "I gave credit, so it's fine." Credit is polite, but it doesn't make a copy fair use.
• "I'm not making money from it." Non-commercial use can still infringe.
• "No copyright infringement intended." A disclaimer doesn't change anything.
• "It was on the internet, so it's public." Being online doesn't put work in the public domain.
• "I only used a few seconds." There's no safe number of seconds or words. It depends on all four factors.

Should you still file?

In the US, you're expected to consider fair use before you send a takedown notice. That doesn't mean you need to be certain. It means you've looked at the use and honestly believe it isn't allowed.

• A straight copy of your work? File. This is what takedowns are for. Start with how to file a DMCA takedown notice.
• Commentary or criticism that uses a small part? Think carefully. If it's a review you don't like, a takedown is likely to be challenged.
• Somewhere in between? You can file, but be ready for a counter-notice.

Outside the US

Fair use is a US idea. Countries like the UK, Canada and Australia have a narrower rule called fair dealing, which only covers specific purposes, like criticism, review, news reporting, research and, in some countries, parody. If the site or uploader is outside the US, local rules can change the answer. For Europe, see takedowns in Europe.

Common questions

More quick answers in our FAQ: What is fair use? and What is a DMCA counter-notice?, which covers what happens if they claim fair use after your takedown.