You found a photo, a song, or a paragraph that fits your campaign perfectly, and now you’re wondering if you can use it without getting sued. That’s the real question behind fair use in copyright law. It’s a legal defense, judged after the fact, one situation at a time. It isn’t a permission slip you can wave before you publish.
Here’s how courts actually decide, so you can read your own risk before anything goes live. One important point: fair use is a U.S. doctrine under 17 U.S.C. § 107. Other countries use their own rules, such as “fair dealing” in the UK and Canada, so a use that’s defensible here may not carry over.
What Fair Use Means for a Business
Fair use allows you to use protected material without permission in limited situations, such as criticism, commentary, news reporting, teaching, scholarship, and research. See 17 U.S.C. § 107. The catch is that no one can confirm in advance whether your use qualifies. That answer usually shows up only when a dispute does.
So treat fair use as a defense you might raise later, not a category of “free” content you can grab. Falling into a favorable purpose helps your case. It doesn’t end the analysis.
Why Crediting the Source Does Not Make It Legal
This trips up more businesses than anything else: people think naming the source makes the use legal. It doesn’t. Attribution is not permission.
Credit and permission fix two different problems. Plagiarism is an ethical issue, and citations address it. Infringement is a legal issue, and only a license or a valid defense addresses it. A team that reposts a photographer’s image “with credit” still copied a protected work without paying for it.
Read More: Copyright Infringement: What It Is and How to Respond
The Four Factors Courts Use
Courts don’t determine fair use by checking a single box. They weigh four factors together under 17 U.S.C. § 107, and no single factor wins on its own. Think of each as a question you can ask about your own use.
Purpose and Transformative Use
The first factor examines why you used the work and whether your use serves a different purpose than the original. Courts often ask whether the new use is transformative, meaning it does more than simply republish or repackage the original work.
A use is more likely to be considered transformative when it serves a genuinely different purpose, such as commentary, criticism, scholarship, or parody, rather than using the work in the same way the original creator intended. Simply adding a new style, aesthetic, or message is not enough on its own. The Supreme Court confirmed this in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), holding that a secondary work is not transformative merely because it adds new expression or meaning; the first factor turns on whether the use has a further or different purpose, weighed against the degree of commercial similarity to the original. Courts also consider whether the new use serves a commercial purpose similar to the original. If both uses serve substantially the same function, such as illustrating a publication or promoting a product, that similarity can weigh against fair use, even if the new work looks different.
Commercial use is only one part of the analysis and does not automatically defeat a fair use defense. However, when a commercial use also serves a purpose similar to the original work, courts may view the first factor less favorably. Every case depends on the specific facts and how all four fair use factors work together.
The Nature of the Original Work
The second factor looks at what you copied. Courts give you more room when the work is factual or already published, and less room when it’s highly creative or never released.
Quoting a published Federal government report, which is generally not copyrighted at all (17 U.S.C. § 105) or a nonfiction book sits very differently from copying an unreleased song. This factor rarely decides a case on its own, but it can tip a close one.
How Much You Used
The third factor has two parts: how much you took, and whether you took the “heart” of the work, judged relative to the original and to your justified purpose . A short excerpt can still hurt you if it grabs the most important part.
There’s no safe percentage and no magic word count. The “10% rule” is a myth. Lifting the recognizable hook of a song counts more heavily than its length suggests.
Read More: Do Small Business Websites Need a Copyright Notice?
The Effect on the Market
The fourth factor asks whether your use replaces the original or harms the existing or reasonably anticipated licensing market. This is where market harm gets measured.
If your use stands in for a sale or a license the owner could have made, it weighs against you. Courts treat this factor seriously, though the transformative question often shapes how they read it.
What Is Not Considered Fair Use?
This is where businesses get burned, because the line is clearer than people expect. The following uses rarely survive a fair use defense:
- Reposting someone’s photo or video to promote your own product
- Using a popular song behind a promotional clip without a license
- Copying a competitor’s blog post or product copy and lightly editing it
- Running a stock image you never licensed because you found it on a search results page
- Reproducing a full article on your site instead of linking to it
The common thread is that these uses are commercial and public and substitute for something the owner sells. “Everyone does it,” and “it was on the internet” are not defenses. Public use also makes infringement more likely to be discovered and challenged.
Read More: Can a lawyer assist in enforcing your copyright against online infringement?
What Are Examples of Fair Use for Businesses?
Fair use can apply in commercial settings when the use is genuinely transformative and takes only what it needs. Walking through realistic scenarios shows where the line tends to fall.
- Industry commentary on a published report. A SaaS company quotes a single sentence from a market study, then spends three paragraphs analyzing what the figure means for its customers. The borrowed portion is tiny, the purpose is new, and the commentary doesn’t replace the report. A reader still needs to buy the full study to get the data. This use sits on strong ground.
- Honest comparative advertising. A retailer names a competitor and cites one factual, published spec to make a true comparison. Because bare facts and specifications are not protected by copyright in the first place, this comparison does not even require a fair use defense — there is no protected expression being copied. Flip the same ad to copy the competitor’s product photography or ad copy — protected expression, unlike a bare fact and the analysis collapses, since that would amount to borrowing creative work and competing in the same market.
- News reporting that shows the event. A trade publication runs a brief clip while reporting on the thing the clip depicts. The clip illustrates the news rather than serving as entertainment on its own. Keep it short and tied to the reporting, and the factors line up. Run the full segment because it drives traffic, and the market-harm factor turns against you.
- Training material that critiques a work. A consultant drops a short excerpt of a published article into a slide that breaks down why its argument fails. The excerpt exists to support the critique, not to stand in for the original. That transformative purpose helps, as long as the excerpt stays small and the audience isn’t a substitute for the source.
Although no single factor controls the outcome, these examples generally involve a different purpose, a limited amount of copying, and little risk of replacing the original work in its market. Change any one of those, and a defensible use quickly slides toward infringement. The pattern matters more than the specific facts: small, transformative, non-substituting uses survive, while wholesale copying for commercial gain does not.
A Quick Fair Use Checklist Before You Publish
Run anything public and commercial through these questions first:
- Is it transformative? Does your use serve a genuinely different purpose from the original, rather than simply repackaging it?
- How much did you take? Did you use only what your point required, and did you avoid the “heart” of the work?
- Does it compete? Could your use replace a sale or a license the owner would otherwise make?
- Did you document why? Can you explain, in writing, the purpose behind the use if someone asks?
- Is the risk worth it? When the answer is close, a license removes the question entirely.
A “no” on transformation, or a “yes” on competing in the same market, is your signal to license the content or rethink the use.
What If Someone Challenges Your Fair Use?
Receiving a cease-and-desist letter or copyright infringement claim does not automatically mean your use was unlawful. Fair use is a legal defense evaluated on the specific facts of each case, and many disputes are resolved without going to trial. The best first step is to avoid responding impulsively or removing content without understanding your legal position. An attorney can evaluate the claim, preserve relevant evidence, assess the strength of a fair use defense, and advise you on the most appropriate response, whether that means negotiating a resolution, modifying the use, or defending your rights.
How Heimlich Law PC Can Help
Most fair use questions begin with a judgment call made under a deadline—a social post, an advertisement, or an AI-generated graphic published before anyone stopped to ask whether the use was legally permissible. AI has made these questions even more important, as courts continue to address unresolved copyright questions involving AI training and certain AI-generated outputs. Getting legal guidance before publishing is typically far less costly than defending a copyright dispute later.
Heimlich Law PC is a boutique intellectual property law firm in San Jose, California, led by attorney Alan Heimlich. We help business owners, founders, and employers navigate copyright issues and advise on patent, trademark, and trade secret matters. Our services include copyright counseling and litigation, patent matters, trademark matters, and trade secret matters.
If you’re unsure whether a planned use may qualify as fair use or could expose you to copyright risk, contact us to schedule a consultation.
