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An Introduction to Fair Use and Other Free Expression Rights

We live in a world filled with copyrighted works, trademarked logos and slogans, and information and products regulated by laws of privacy, publicity, trade secrets, competition, and patents. Anyone who writes a satirical story, films a documentary, criticizes a company's product, or otherwise engages with modern culture, economy, or politics, may come into conflict with someone who claims intellectual property ("IP") rights.

But key legal doctrines protect our rights to engage in commentary, criticism, and other expression that may conflict with someone else's claim to control IP. In the U.S., these doctrines are grounded in the First Amendment rights to free speech and freedom of the press. Other countries also incorporate protections for free speech and personal use in their copyright or trademark laws. For instance, "fair dealing" is a defense to copyright infringement in England, Canada, Australia, and other British Commonwealth countries.

The commonest question most people have about fair use is "how much can I quote or copy?" There is no simple answer. As this site explains, whether a court would find a particular parody, critique, or other use of trademarks or copyrighted material to be fair varies with the circumstances. Even though some industries have commonly-accepted numerical practices (for instance, publishers permitting no more than two lines of poetry), there are actually no such hard-and-fast rules in the law or or in the court cases interpreting the law. Unfortunately, creative industries are often overly cautious in establishing their informal practice guidelines, with consequences that unduly restrict the exercise of fair use rights.

Copyright Law Protections

In copyright law, the fair use doctrine, the first sale doctrine, important exclusions from copyright control, and the eventual entry of copyrighted works into the public domain all ensure that people have the right to criticize, build upon, and in some circumstances share copyrighted works. These doctrines ensure greater dissemination of information, the ultimate goal of both the Copyright Act and the First Amendment.

The fair use doctrine permits anyone to use copyrighted works, without the owners' permission, in ways that are fundamentally equitable and fair. Common examples of fair use are criticism, commentary, news reporting, research, scholarship, and multiple copies for classroom use.

The "first sale" doctrine says that once a copyright holder has sold a copy of a work, she cannot control what the user does with it. Libraries can loan books, for example, and people can sell their old CDs.

The "idea/expression dichotomy" excludes facts and ideas from copyright control. Copyright law doesn't affect people's ability to use facts and ideas — it only regulates their use of someone else's "expression" of facts and ideas.

Finally, even works that have copyright protection eventually should end up in the public domain, when they may be freely distributed, copied, transformed, or otherwise used by anybody.

Learn more:

• Copyright 101
• Fair Use of Copyrighted Works
• Consumers' Rights Over Copies They Buy: The First Sale Doctrine
• How Long Copyright Lasts, and What Is the Public Domain

Trademark Law Protections

The claims of trademark owners may also conflict with free expression. Trademarks can include product names, short phrases, logos, even colors or sounds. Since trademarks can theoretically last forever, and infringements often result in court orders suppressing the unauthorized use of a trademark, the law has a broad potential to restrict free expression.

Consequently, trademark law incorporates limitations, First Amendment protections, and a doctrine called "fair use" to protect free expression.

Since trademark law was originally intended to ensure that consumers are not confused by the unauthorized use of recognizable marks, an essential element of trademark infringement is that the use of the trademark creates a likelihood of confusion. The likelihood of confusion doctrine means that it does not infringe a trademark to use a mark in a way that will not confuse consumers as to the sponsorship or origin of goods or services — for instance, discussing products or showing logos in a crowd shot.

Fair use in trademark law also protects descriptive uses of ordinary English words and phrases, place names, and personal names, even if they are also used as trademarks. This basic limitation is essential for free expression, since any term can acquire trademark meaning.

Similarly, fair use in trademark law also protects anyone's right to use the term to actually refer to the trademarked good or service. This is essential for competitors to engage in comparative advertising, for instance, and for critics and commentators to describe, discuss, and compare companies and their products.

Particularly, the use of trademarks in parodies and criticisms is protected either as a "fair use", or just outright as First Amendment-protected speech. So long as the critic is not attempting to sow confusion or otherwise act in bad faith, these uses are protected.

Finally, there are a number of areas of law related to trademark — for instance, trademark dilution and the right of publicity. These different legal rules impose different restrictions on speech. For instance, trademark dilution doesn't require confusion; so, the impact on speech can be broader than in trademark infringement. But each related area of law also has its own limitations and speech-related defenses. In trademark dilution, for instance, the trademark fair use doctrine also applies. Likewise, state rights of publicity, which largely protect celebrities, generally contain reporting and other free speech protections.

Learn more:

• Trademark and Related Claims
• Free Expression Defenses & Trademark Law