Fair Use Lets Something Old Become Something New


We’ve all seen the digitally altered photos on social media that we now know are fake: A smiling House Speaker Nancy Pelosi was not photographed in front of a Trump 2020 sign in January. That was not an armed protestor in front of a smashed storefront during the recent racial justice unrest in downtown Seattle.

Sometimes combining old and new is not fake, but art or parody or legitimate and legal commentary. Setting aside issues of fake news, how can we know when it’s OK to use someone else’s work without infringing on copyright?

Depending how you use the original material, your new creation may be allowed under the “fair use” legal doctrine and you may not need permission from the copyright owner.

Digital communication makes it easy to modify and share copyrighted material, from social media posts to webinar slides. Yet to be fair to the original source and avoid liability, we need to understand what is fair use. At JayRay it’s always a consideration when we create materials for our clients and our firm.

Fair use can be subjective and difficult to meet. If you’re working with copyrighted material, evaluate your new content against the four factors that determine if you’re using it fairly:

  • To what degree was the original transformed? Greater transformation means lower risk.
  • Was the original factual or fictional? You have greater leeway with factual content.
  • How much of the original was copied? Less is best.
  • Does the new use harm the original’s commercial value? Lack of harm should be your goal.

The courts handle copyright infringement claims on a case-by-case basis. Parodies, sitcom props, sculptures and mascots have been the focus of many fair use court cases. See if you agree with these fair use decisions in an article from PNW Startup Lawyer.

As you exercise your creativity, we offer a few guidelines:

  • When practical, ask for permission from the owner.
  • If you are unable to identify the owner, diligently track your efforts to learn the owner’s identity and get permission.
  • Follow usage rights for stock photos; some companies are aggressively protective.
  • Link to the original source rather than including too much content (in text).
  • Provide photo and source credits as standard practice, yet know this won’t protect you from a copyright infringement claim.
  • Consult with an attorney for legal advice.