If your website uses another person’s copyrighted works, post a fair use disclaimer to disclose that your site may contain content not authorized for use by the copyright owner.
A fair use disclaimer helps protect your site from copyright infringement claims, as long as your use of copyrighted content falls within the US guidelines for fair use.
Fair use permits the commentary, criticism, or parody of a copyrighted work without having a license from the copyright holder.
Read on to learn more about US copyright law and fair use, how a fair use disclaimer can protect you, and how to draft a fair use disclaimer for your website.
1. What Is a Fair Use Disclaimer?
A fair use disclaimer (sometimes referred to as a copyright disclaimer) is a statement declaring that your website may include copyrighted content that isn’t authorized for use by the owner.
A fair use disclaimer lets site visitors know that while you don’t have permission to use the copyrighted material, you’re lawfully using it under the practice of fair use, which is governed by the Copyright Act.
Fair use laws allow individuals to broadcast or use copyrighted material — without seeking licensing rights to the work — as long as this “fair use” uses the work in a transformative way, without the user taking credit for it themselves.
Here are some copyright examples protected by law:
- Literary, musical, and dramatic works
- Pantomimes and choreographic works
- Pictorial, graphic and sculptural works
- Sound recordings
- Motion pictures and other audiovisual works
- Computer programs
- Compilations of works and derivative works
- Architectural works
To engage in fair use of any of the above forms of copyrighted work without attribution or payment to the owner, they must be used for one the following purposes:
These actions are considered “transformative” uses of the copyrighted work, as opposed to simply presenting the work as your own.
2. The Fair Use Act & Disclaimers
Section 107 of the Copyright Act (also known as the Fair Use Act) covers fair use of copyrighted works in the US. This statute focuses on four factors that help determine what constitutes fair use:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and sustainability of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
These factors are designed to ensure that the copyright owner is fairly compensated for their work if others are going to use it for their own profit or benefit.
Let’s look at each of these four factors in more detail.
Purpose and Character of the Use
Fair use policies only permit the use of copyrighted works for educational, informational, or commentary purposes.
It can be tougher for courts to assess whether fair use is carried out in cases involving mixed uses of copyrighted works (e.g., a for-profit organization claiming to use original works for educational purposes).
Nature of the Original Copyrighted Work
The Fair Use Act specifies that:
the fact that a work is unpublished shall not itself bar a finding of fair use.
In other words, fair use principles can still apply to copyrighted works that have not been formally published.
Amount and Sustainability of the Work
Using a small portion of a copyrighted work is more likely to be considered fair use.
For example, using a small snippet of lyrics or a few notes of a riff for music sampling is more likely to be deemed fair than using an entire verse of the song.
Only borrow small samples of a copyrighted work to use transformatively, so it’s easier to claim fair use.
Effect of the Use
If the work you’re borrowing brings you (instead of the creator) profit, it’s less likely to be considered fair use.
Evaluating the potential value of a copyrighted work is difficult in the digital age, as borrowed work may quickly go viral overnight, whether unintentionally or unexpectedly.
When deciding to include copyrighted works on your site, consider if your use is likely to have a negative financial impact on the creator.
3. When You Need a Fair Use Disclaimer
You need a fair use disclaimer when you use copyrighted works for transformative purposes without permission from the copyright owner.
Having a fair use disclaimer on your site accomplishes three things:
- It acknowledges that you’re aware of US copyright laws governing fair use.
- It can help protect you from being accused of copyright infringement.
- It helps separate the work you’re doing from the work you’re borrowing.
Without a fair use disclaimer, you face greater risk of getting a cease and desist letter or facing a lawsuit.
By showing that you’re aware of using copyrighted materials and are taking steps to protect the original owner’s intellectual property, you’ll be in a better position to defend yourself against any accusations of copyright infringement.
4. Examples of Fair Use Disclaimers
Fair use disclaimers across websites have common features, with differences in content depending on the type of copyrighted material being used.
Let’s take a look at some examples of fair use act disclaimers across the web.
YouTube Fair Use Copyright Disclaimer
Here’s an example of a YouTube music video fair use copyright disclaimer that meets fair use requirements. The disclaimer includes the fair use guidelines from Section 107 of the Copyright Act, states that credits go to the content owners, and declares that no copyright infringement is intended:
Like this example, your fair use disclaimer can directly quote Section 107 of the Copyright Act to let users know what legally constitutes fair use.
You can also add a statement clarifying that you’re using someone else’s content. Here’s a sample fair use statement you can use:
I do not own this content. All credits go to its rightful owner.
Academic Website Fair Use Act Disclaimer
The Syracuse Journal of Science and Technology Law fair use statement specifies that the site is for educational purposes only, followed by an explanation of fair use laws and the definition of fair use:
This generic fair use statement is short and simple but still lets the reader know that the Journal is aware of its copyright obligations.
Healthcare Website Fair Use Disclaimer
The Multiple Chronic Conditions website fair use disclaimer includes thorough explanations of fair use and copyright laws:
Like this example, going over the definitions of both fair use and copyright could be useful for users as the two concepts are closely related.
However, for most business websites, a fair use disclaimer doesn’t need to be overly detailed to be effective.
Online Shop Fair Use Notice
Choices Natural Market’s fair use notice explains how their use of photos from other sources constitutes fair use according to the Copyright Law. It states that the materials on the site are provided for educational and informational purposes and not used for profit:
In this example, the fair use notice is hosted on the website’s disclaimer page.
5. How to Write a Fair Use Disclaimer
You write a fair use disclaimer by following these three steps:
- Clearly state that your site may contain copyrighted content not authorized for use by the owner.
- Explain that your use of copyrighted content falls under the guidelines of fair use.
- Cite or link to Section 107 of the Copyright Act.
A fair use disclaimer can also include a statement saying that the website is for educational or entertainment purposes only, helping to further solidify the fair use of the copyrighted content. Display your fair use disclaimer in a prominent place for users to see.
In addition to posting your fair use disclaimer everywhere copyrighted content appears, you can add a fair use section to a disclaimer template and link the disclaimer page prominently on your site.
By meeting fair use guidelines and advertising your commitment to protecting intellectual property, you’ll be better able to protect yourself against allegations of copyright infringement.