What will you learn in this chapter?
Fair Use is the allowance made for the use of copyrighted material for the purpose of commentary, criticism, or parody. This chapter discusses the legal framework for Fair Use and the specifics of when Fair Use does and does not apply.
Copyright is a restriction on free speech
In the United States, we have a constitutionally guaranteed right to Freedom of Speech and also of the Press.
At its most basic, this means that you can say, write, or publish anything you want to and the government is not supposed to be allowed to do anything to restrict that.
However, we know that this is not completely true. Certain forms of speech are restricted because society has determined that the benefit of restriction far outweighs the infringement on freedom.
For example, fraudulent advertising, libel, false accusations, and other types of lying are considered criminal behavior. The classic example of yelling “Fire!” in a crowded theater falls into this category. These are restrictions on free speech put in place to protect the public from certain types of harm.
Copyright functions similarly, except it doesn’t protect form harm. Rather, it promotes a benefit — artists having control over their work and being able to profit from it.
The restriction occurs because if someone had absolute freedom to publish whatever they wanted, that would include the ability to publish something originally written by someone else. The benefit of artist control comes at the cost of a restriction on freedom.
However, the restriction carries its own costs which may be harmful to society. If you need someone’s permission to quote them in order to argue against their position or expose them as a liar, you would likely never get that permission. And this type of criticism is precisely the purpose of Free Speech and Free Press rights in the first place.