Guide to Meeting Fair Use in Content Creation

GUIDE TO MEETING FAIR USE IN CONTENT CREATION

One: Copyright Basics

When content marketing writers and content strategists use material for their own writing and strategies, they’ll often use other material, and they’re bound by law to respect copyrights. Copyrights are attributed to works made by both individuals and collectives.

Under the U.S. copyright law, a “work” can be anything made by a human being. For content marketing writers, what we most frequently use to construct our own material includes literary works (articles, essays, blogs, books), images (photographs and digitized images), graphics, and more.

If a work is published in any way—including on the internet—it’s basically copyrighted the moment it’s created. Under the law, the U.S. Copyright Act of 1976, a work does not need to be registered with the U.S. Copyright Office to be considered copyrighted; however, doing so ensures full legal protection of a work.

There are three criteria for a work to be copyrighted:

1. A work must be original. It must be a new work that comes from the creator and is not a copy or scan of the work.
2. A work must be fixed. Under the law, a fixed work is a “tangible medium of expression” that can be saved as a document, digital file, or recording. This includes podcasts, blogs, and social media posts, as well as books, magazines, and newspapers.
3. A work must show a minimal amount of creativity.

What is not protected by copyright is “common knowledge,” which includes facts, news, and even ideas (an idea is not copyrightable, but a tangible work built from an idea is).

The copyrighted work of another person can be utilized to produce our own works, but to do so we must follow Fair Use guidelines, obtain permission when necessary, and properly cite sources.

Two: What is Fair Use?

Fair Use permits the unlicensed use of copyright-protected works under certain circumstances. What constitutes “fair use” is intentionally ambiguous and is handled in courts on a case-by-case basis.

There are four factors to decide “fair use.”

1. The purpose and character of the use.

First, this factor addresses whether the use of a copyrighted work is commercial or non-commercial. In general, if the use is non-commercial, it is more likely to be considered fair use. To use a work in analysis, criticism, or education would be considered fair use. Second, this factor addresses whether the use of a copyrighted work is “transformative,” which means the use adds something unique to a body of knowledge, building on the ideas of the copyrighted work rather than substituting for the work being used. The more transformative, the more the work leans toward fair use.

2. The nature of the work.

If the copyrighted work being used is more factual, as with a work of non-fiction, it is more likely to be considered fair use. If the copyrighted work is more creative or imaginative, as with fiction, it is less likely to be seen as fair use.

3. The amount of the work used.

The amount of the copyrighted work, in relation to the whole of the copyrighted work, is a factor. If a small amount of the copyrighted work is used, it is more likely to be considered fair use. Similarly, there is a qualitative consideration of the substance of the work used; if you rely on a central idea or major theme of the work, it may not be considered fair use. Use “only what you need.”

4. The effect on the market and value of the work.

If usage interferes with the marketability of a copyrighted work—the creator’s right to make money from their work—this does not constitute fair use. If it does not significantly impede the author’s ability to benefit from their work, it is more likely to be considered fair use.

Three: Determining the Copyright of a Work

Before using a work, look for these things, which are recommended to be added to any work to denote its being copyrighted in the most basic form:

• A copyright symbol (©)
• The creator’s name
• Contact information from where permissions can be obtained
• Year or years to which the copyright pertains
• The phrase “All rights reserved”

When these things are present, you can go about getting permission from the owner of the copyright to use a work. Outside of that, you can follow Fair Use guidelines and cite the work.

You can also search the Copyright Office catalogs and records, or even have the office conduct a search for you. Works from January 1, 1978, to the present can be searched at https://www.copyright.gov/public-records/.

Four: Specifics for Copyright of a Written Text, Including Online

1. Examine the work for copyright information. A book will usually contain this on the back of the title page, and magazines will feature the copyright near the table of contents. Online materials may include this information at the bottom of a webpage.
2. Look at the date. First, all works published in the U.S. before 1923 are in the public domain and are free to use.
3. For works published between 1922 and 1964, check to see if the copyright was renewed; this may require contacting the U.S. Copyright Office.
4. If the type of work is “public knowledge,” which includes ideas, concepts, facts, names, titles, short phrases, familiar symbols, numbers, processes, methods of operations, systems, and works and documents created by the U.S. government (in most cases), it is not covered by copyright.
5. The designation “CC0” means the work is in the public domain through the “Creative Commons” website. Look for this designation.

In general, err on the side of caution. Assume that all published material is copyrighted.

Five: Specifics for Copyright of an Image, Especially Online

1. A digital photograph or image will frequently have a tag that denotes its copyright.
2. Look at captions on the page where the image is featured, which can feature credits and contact details for the copyright owner, as well as the copyright symbol.
3. Look for EXIF data, which can indicate copyright and the owner’s name. There are instructions online for how to do this using Windows and MacOS.
4. Use “reverse image” searches in engines like Google or Bing.
5. Use an image copyright checker like Filestack or PicDefense.
6. Look for watermarks on the image itself, which often substitute for the copyright symbol.

Again, err on the side of caution. To avoid copyright infringement, use stock images available on image licensing platforms, which are available for a fee on sites like Getty Images or for free on sites like Pexels.

Requesting Permission

Whether a work is in print or online, determine whether your use of the work requires you to get permission from the copyright holder. If your use falls under “Fair Use,” you can forego getting permission, but be sure to properly cite a source.

Follow these steps to determine if you do need permission:

1. Determine the status of the work. If the work is in the public domain, meaning the copyright is expired, you don’t need to request permission. If the work has a copyright notice, determine the copyright owner (sometimes the creator is no longer the owner, and only the current copyright owner can grant permission).
2. Contact the copyright owner and provide them with information: who the creator of the work that you intend to use is, the title of the work, the copyright date, and what use you intend to make of the work. Be sure to contact them well in advance.

Interviews and Copyright

When conducting an interview, a writer can ask the interviewee to grant permission through a signed interview release, though this is not necessarily common practice, including for journalists, reporters, and writers.

An interview release can help in lawsuits for not only libel or invasion of privacy, but also for copyright infringement since the interviewee’s words can be copyrightable.

Rich Stim, an attorney writing for the Stanford Libraries, recommends a written interview release if the interview is lengthy, will be published in a Q&A verbatim format, or if the subject matter of the interview is controversial.

Often, an interviewee can read over the text of an interview before publication and make amendments. Any agreement to do this or otherwise, between interviewer and interviewee, should be documented, and can be as simple as a short, written release or consent given orally and recorded on audio or video.

A statement such as “I consent to the use of my statements on The Writers for Hire blog” will offer some assurance to use statements without infringement.

The website https://fairuse.stanford.edu/overview/releases/interview-and-property/ offers a few templates for interview release agreements.

Interview Citations (Chicago Style)

Interview:

In the Chicago style, it is recommended not to use a citation in the bibliography; instead, the interview can be referred to in a footnote when a first quote or paraphrase is used, referring to yourself as “author.” For example:

Wendell Berry, interview by author, April 12, 2024.

Writing Content Under Fair Use: A Checklist

Writing a company blog can be largely covered by Fair Use. When referencing a text, be mindful of the following:

1. Only use the copyrighted work in a non-commercial way (meaning, your blog is not being used to make money in any way) and characterize your blog as a discussion of some of the copyrighted work’s ideasin terms of analysis and education. Do not focus on the work’s central idea such that you are claiming it as your own.
2. Use only factual copyrighted works, which is to say reference only non-fiction. In corporate writing that will mostly be the case anyway,  so you’ll most likely be drawing on copyrighted works like news and analysis through articles and blogs.
3. Be conservative in how much material you use from the copyrighted article, both in quotes and paraphrases. Use small amounts of material.
4. When you use material from a copyrighted work, do not impede the ability of the original author or publisher to benefit economically from their copyrighted work.
5. Before you use a copyrighted work, either text or visual, determine its copyright information. If it falls under Public Domain or, in most cases, the Creative Commons license, you are free to use it.
6. If you plan on using larger sections of the copyrighted work, or a work in its entirety, obtain permission from the copyright holder.
7. Make sure you cite all copyrighted work in your own publication. Include websites, authors, and publishers in the citation. The citation can be “in-text,” meaning worked into the prose, or in the form of a bibliography at the bottom of the page.
8. If you use extensive interview material, ask the interviewee for an interview release. Remember, even a short written or audio release is a start. But for short quotes, a release may not be necessary.