A: Fair Use is a term in intellectual property law that describes a limitation and acceptance to the rights granted by copyright to the author of a creative work. You should care, my friend, because it is essential to the concept of not ripping off other creative people (or vice versa).
The U.S. Fair Use doctrine permits the limited use of copyrighted items without getting permission from the copyright holder. Examples of Fair Use include commentary, criticism (parody), news reporting, research, teaching, library archiving, and scholarship. Under Fair Use, you can sometimes incorporate other peoples' previously created intellectual property into your own new works. If you use something in your design, like an illustration or a song, that doesn't fall into the category of Fair Use without the creator's express permission, then congratulations, you are stealing. Or as lawyers would put it— infringing on the rights of others.
Intellectual Property attorney and Art Center College of Design teacher, Michelle Katz, esq. says, "The way to think about Fair Use is a set of public policy exemptions to copyright protected work." Here are some examples of public policy reasons:
• If the work is newsworthy
• If you need to reference the work in order to:
- comment on it
- critique it
- explain it in a research or educational capacity
- make fun of it."
Katz cautions that Fair Use is not a free ticket to use anyone's work any time and in any amount. "You can only use as much of the original work as you actually need in order to meet the public policy need," she explains. "You have to create a new work with your use so that the message, statement, or point of view of your new work makes an entirely new statement or has a new meaning, look, feel and is thus transformed. Sometimes, making your point or doing a parody does transform the original work. Sometimes, altering the composition transforms the work. (That is what illustrator Shepard Fairey attempted to do with the Associated Press photograph of Barack Obama in his 2008 Obama campaign poster that read 'HOPE.') Sometimes, referencing a string of works that represent a particular genre or pattern of design makes a different statement than when the original work itself stands alone. Finally, when determining whether a new work is Fair Use, a court would consider whether the new work harmed the market for the original. In other words, would consumers buy the new work instead of, or as a replacement for, the original?"
Just how gnarly can a Fair Use trial get? Check out Shepard Fairey and the Obama "Hope" Poster case.
The Design Bitch is Terry Lee Stone, a Los Angeles-based creative manager and writer. She teaches the business of design at Art Center College of Design. The author of several books on design, her recent series is called, Managing The Design Process, published by Rockport Publishers.