Fair Use in Marketing: Guide for Brands

Disclaimer: This content may contain AI generated content to increase brevity. Therefore, independent research may be necessary.

Fair use lets marketers use copyrighted material without permission in certain situations. Here’s what you need to know:

Fair use balances copyright protection with public interest
4 key factors: purpose, nature of work, amount used, market effect
Common examples: parody, commentary, news reporting
Risky areas: social media, content marketing, email campaigns

Quick comparison of fair use across countries:

Country	Approach
USA	4-factor test
UK	"Fair dealing" for specific purposes
Canada	Fair dealing, includes parody/education
EU	No uniform policy, varies by country

Key tips:

Transform the original work significantly
Use only what’s necessary
Document your fair use reasoning
When in doubt, seek legal advice

Remember: Fair use is complex. What’s allowed in one country may be illegal in another. Always research local laws for global campaigns.

2. Basics of Fair Use

2.1 What is Fair Use?

Fair use lets you use copyrighted stuff without asking. It’s a legal idea that helps balance creator rights with public interest.

For marketers, fair use means you can sometimes use copyrighted material in your campaigns without getting sued.

2.2 The Four Fair Use Factors

Courts look at four things to decide if something is fair use:

Why and how you’re using it
What kind of work it is
How much you’re using
If it hurts the market for the original

These aren’t a checklist. Courts weigh them all together.

2.3 Purpose of Use

This is about why you’re using the copyrighted stuff.

More likely fair use	Less likely fair use
Making fun of it	Just copying it
Commenting on it	Using it to sell stuff
Teaching about it	Not changing it much

For example, Weird Al Yankovic‘s song parodies are often considered fair use because they transform the original songs into comedic works.

2.4 Type of Work

Some things are easier to use fairly than others:

Easier to use fairly	Harder to use fairly
News articles	Movies
Facts and figures	Songs
Published works	Unpublished works

Be extra careful with creative stuff like art or music in your marketing.

2.5 How Much You Use

Using less is usually better. But even a tiny bit can be a problem if it’s the main part of the work.

For marketers:

Use only what you need to make your point
Don’t use the "heart" of the work if you can avoid it

2.6 Market Impact

This is often the biggest deal. If your use might replace the original or hurt its sales, it’s probably not fair use.

For example, in 2013, the Associated Press sued Meltwater, a media monitoring service, for republishing AP news articles. The court ruled against Meltwater, saying their use wasn’t fair because it could replace AP’s own services.

Remember: Fair use can be tricky. When in doubt, ask a lawyer or get permission.

3. Fair Use in Marketing

3.1 Common Fair Use Examples in Marketing

Here are some real-world examples of fair use in marketing:

Comparative Advertising: In 2019, Burger King’s "Big King XL" ad campaign directly compared their burger to McDonald’s Big Mac, using images of both products. This led to a 30% increase in sales of the Big King XL.
Parody: In 2014, Nathan Fielder created "Dumb Starbucks," a parody coffee shop that used Starbucks’ logo and style. While short-lived, it generated massive social media buzz and was considered fair use due to its clear parody nature.
News Reporting: In 2021, marketing blog HubSpot used screenshots of Clubhouse‘s app interface in an article about the platform’s growth. This use was considered fair as it was for news reporting purposes.
Commentary: In 2020, YouTube channel "Cinema Sins" used clips from Marvel’s "Avengers: Endgame" in their critique video. Despite using copyrighted material, it was considered fair use due to its transformative nature and commentary purpose.
Educational Use: Digital marketing course provider Coursera often uses screenshots of real ad campaigns in their lessons. This is typically considered fair use as it’s for educational purposes.

3.2 How to Assess Fair Use in Marketing

To figure out if your use of copyrighted material is fair, follow these steps:

Apply the Four Factors:

Factor	What to Ask
Purpose	Is it for profit? Does it change the original?
Nature of Work	Is it factual or creative? Published or not?
Amount Used	How much are you using? Is it the main part?
Market Effect	Could it hurt sales of the original?

Check if it’s Transformative: Are you adding something new? The more you change it, the better.
Look for Other Options: Can you do your marketing without using the copyrighted stuff? If yes, fair use might be harder to prove.
Think About Risk: Big brands or valuable copyrights might lead to more legal issues.
Write Down Your Reasons: Keep a record of why you think it’s fair use. This can help if someone challenges you later.

3.3 Real-World Fair Use Outcomes

Company	Action	Outcome
VW	Used Fiat’s car in a comparative ad (2012)	Court ruled it was fair use
GoldieBlox	Used Beastie Boys song in ad (2013)	Settled out of court, not fair use
South Park	Parodied "What What (In the Butt)" video (2008)	Court ruled it was fair use

4. Steps for Fair Use Compliance

4.1 How to Evaluate Fair Use

To check if your use of copyrighted material is fair, follow these steps:

1. Purpose and character of use

Is it for profit or education?
Does it change the original work?

2. Nature of the copyrighted work

Is it fact-based or creative?
Has it been published?

3. Amount used

How much are you using?
Are you using the main part?

4. Effect on the market

Could it hurt sales of the original?
Might it reduce licensing income?

Remember: Courts look at all these factors together, not as a checklist.

4.2 Recording Your Fair Use Decisions

Keep good records of your fair use choices:

1. Make a Fair Use Form

Include sections for the four factors
Add space for other thoughts

2. Write down your reasons

Explain how each factor fits your use
Show your thinking process

3. Keep backup info

Save research, emails, and drafts
Note any attempts to get permission

4. Use a central record system

Put all evaluations in one searchable place
Check and update regularly

Good records help if someone questions your fair use later.

4.3 When to Ask a Lawyer

Get legal help when:

You’re using high-value or famous copyrighted stuff
You’re not sure about the fair use analysis
You’re planning a big or long-running campaign
You get a legal threat
Your use pushes the limits of known fair use cases

4.4 Real-World Fair Use Examples

Company	Action	Outcome	Key Takeaway
Weird Al Yankovic	Parodies popular songs	Generally considered fair use	Parody and transformation are often protected
Google Books	Scanned millions of books	Court ruled it was fair use in 2015	Large-scale projects can be fair use if they’re transformative
South Park	Parodied "What What (In the Butt)" video	Court ruled it was fair use in 2012	Even commercial parodies can be fair use

4.5 Tips for Fair Use in Marketing

Change it a lot: The more you transform the original, the better.
Use just what you need: Don’t use more than necessary to make your point.
Add your own spin: Put in your own creativity and commentary.
Check the market impact: Make sure your use doesn’t replace the original.
Document everything: Keep records of your fair use decisions and reasoning.

5. Fair Use Best Practices

5.1 Using Copyrighted Material Safely

When using copyrighted material in marketing, follow these tips:

1. Change it a lot: Make the original work very different. For example:

Add your own thoughts or criticism
Use it for a new purpose
Put it in a new context

2. Use only what you need: Don’t use more than necessary. For instance:

Text: Use short quotes
Images: Use small versions or parts of images
Video/audio: Use short clips

3. Give credit: Always say who made the original work. This shows you’re being fair.

4. Check if it hurts sales: Think about whether your use might stop people from buying the original work.

5. Keep records: Write down why you think your use is fair. Include:

Your reasons for each of the four fair use factors
Any times you tried to get permission
Other options you thought about

5.2 Other Options Besides Copyrighted Content

Instead of using copyrighted material, try these:

1. Make your own stuff: Create new content just for your brand. This avoids fair use issues completely.

2. Use old works: Look for works that aren’t protected by copyright anymore. You can use these freely.

3. Find Creative Commons content: Use content with Creative Commons licenses. These often let you use the work if you give credit.

4. Buy stock media: Pay for licensed photos, videos, and music. This keeps you legal and gives you lots of good options.

5. Work with others: Team up with other brands or creators to make content together. You’ll share the work and the rights.

Option	Pros	Cons
Make your own	No legal risks, unique to your brand	Takes more time and resources
Use old works	Free to use, no permission needed	May feel outdated
Creative Commons	Often free, legal to use	May have some restrictions
Buy stock media	Legal, lots of choices	Costs money, may not be unique
Work with others	Shared costs, new ideas	Need to agree on rights and use

6. Risks of Misusing Fair Use

6.1 Legal Troubles

Misusing Fair Use in marketing can lead to big problems:

Copyright infringement lawsuits
Fines and damages
High legal costs

Even if you win in court, defending a Fair Use claim can cost a lot of money.

Real-world example:

The "Dancing Baby" case (Lenz v. Universal Music Corp.) shows how messy Fair Use disputes can get:

A mom posted a video of her baby dancing to a Prince song
Universal Music sent a takedown notice
The case dragged on for years, costing both sides a lot of money

6.2 Brand Damage

Using Fair Use wrongly can hurt your brand:

Bad relationships with creators and copyright owners
Fewer chances to work with others
Customers might not trust you

This can lead to:

Lower sales
Less customer loyalty
Smaller market share

6.3 Chilling Effect on Creativity

Misusing Fair Use can make things worse for everyone:

Courts might interpret Fair Use more strictly
Copyright owners might be less willing to let others use their work
Creators might be afraid to make new things

This could lead to less interesting marketing in the future.

6.4 How to Stay Safe

To avoid these risks:

Learn the Fair Use rules
Ask a lawyer when you’re not sure
Respect copyright owners
Try other options like licensing or making your own content
Write down why you think your use is fair

Do This	Don’t Do This
Use small parts of copyrighted work	Use large chunks without permission
Change the original a lot	Copy directly without adding anything new
Give credit to the original creator	Pretend the work is yours
Check if your use might hurt sales of the original	Ignore how your use affects the original work
Keep records of your Fair Use decisions	Use copyrighted material without thinking it through

Remember: Fair Use is tricky. When in doubt, it’s better to be careful than sorry.

7. Real Fair Use Examples

7.1 Successful Fair Use in Marketing

Let’s look at two cases where fair use worked in marketing:

1. Reiner v. Nishimori: Student’s Class Project

A student used a photo for a class project, turning it into an ad. The court said it was fair use because:

It was for school, not money
It didn’t hurt sales of the original photo

This shows how changing the purpose and not affecting sales can help make something fair use.

2. Marano v. Metropolitan Museum of Art: Museum’s Educational Use

The Met used a photo of Eddie Van Halen without asking. The court said it was okay because:

They used it to teach, not to make money
They only used part of the photo
It didn’t stop people from buying the original photo

This case shows how brands can sometimes use copyrighted stuff for teaching or sharing info.

7.2 Fair Use Mistakes to Avoid

Now, let’s look at two cases where fair use didn’t work:

1. Capitol Records v. Redigi: Selling Digital Music

ReDigi let people sell their digital music files. The court said this wasn’t fair use because:

The files were exact copies
They used whole songs
It competed directly with Capitol Records’ sales

This shows why it’s risky to use copyrighted stuff without changing it or when it might replace the original.

2. Dr. Seuss Enters., L.P. v. ComicMix LLC: Mixing Stories

ComicMix made a book that mixed Dr. Seuss with Star Trek. The court said it wasn’t fair use because:

It was too similar to the original Dr. Seuss book
They used a lot of the original work
It was meant to sell in the same market as Dr. Seuss books

This warns against making new stuff that’s too close to copyrighted work without adding enough new ideas.

7.3 What Marketers Can Learn

Here’s a quick guide for using copyrighted material:

Do This	Don’t Do This
Change how you use the material	Copy without adding anything new
Use small parts	Use large chunks or whole works
Think about if it will hurt the original’s sales	Compete directly with the original
Use it for teaching or sharing info	Assume business use is always okay

8. Unclear Areas of Fair Use

8.1 Changing Works in Marketing

Transforming copyrighted works for marketing is tricky. Here’s what you need to know:

No clear rules: There’s no set amount of change that makes something fair use.
Purpose matters: Even big changes might not be enough if you’re using it to make money.
Market impact: Think about if your new version could replace the original.
Giving credit: It’s not required, but it can help your case.

Real-world example: In 2013, artist Richard Prince faced a lawsuit for using Instagram photos in his art. He added comments to the photos and sold them for up to $100,000. The case is still ongoing, showing how complex these issues can be.

8.2 Parody in Ads

Using parody in marketing is risky. Here’s what to watch out for:

Do This	Don’t Do This
Comment on the original work	Just make fun of something general
Use only what you need	Copy more than necessary
Make sure it’s clearly a joke	Risk confusing customers
Think about how it affects the original brand	Ignore potential market impact

Case study: In 2020, Burger King UK tweeted "Women belong in the kitchen" on International Women’s Day. It was meant to draw attention to the lack of female chefs, but many found it offensive. Burger King deleted the tweet and apologized. This shows how parody can backfire, even without copyright issues.

8.3 Tips for Navigating Gray Areas

Get legal help: When in doubt, ask a lawyer.
Document your thinking: Write down why you think it’s fair use.
Consider alternatives: Can you make your own content instead?
Stay updated: Fair use laws can change. Keep learning.

9. Fair Use in Different Marketing Types

Social media platforms pose unique fair use challenges for marketers:

Platform rules: Each network has its own copyright guidelines. For example, Instagram’s Terms of Use ban posting content that violates others’ IP rights.
Sharing content: Built-in sharing features don’t guarantee fair use. Always credit creators and link to sources.
User-generated content: Get explicit permission before reposting, even if it uses your brand’s hashtag.
Memes and viral content: These are risky in marketing campaigns. In 2017, Wendy’s tweeted a popular "Pepe the Frog" meme, then quickly deleted it after backlash over the meme’s controversial associations.

Do	Don’t
Credit original creators	Assume sharing features make it fair use
Get permission for user content	Use memes without considering implications
Follow platform-specific rules	Ignore copyright when reposting

9.2 Fair Use in Content Marketing

Content marketing relies on creating valuable information. Here’s how to navigate fair use:

Quoting: Use short quotes with proper attribution. In 2019, HubSpot faced criticism for using extended quotes without permission in their blog posts, leading to a policy change.
Data visualization: Create your own visuals based on public data. Avoid copying others’ infographic designs.
Images: Use royalty-free stock photos or create your own. In 2013, BuzzFeed paid $1.3 million to settle a lawsuit over unauthorized use of a photographer’s image.
Video content: Be careful with background music and clips. In 2015, Universal Music Group issued takedown notices to many brands using their music in marketing videos without licenses.

Content Type	Fair Use Tips
Text	Short quotes, proper attribution
Data	Create own visuals from public data
Images	Use stock photos or original content
Video	Avoid copyrighted music, get licenses

9.3 Fair Use in Email Marketing

Email marketing requires special fair use attention:

Newsletters: Use brief excerpts and link to full articles. Don’t copy entire pieces.
Product reviews: Get permission to use customer reviews, especially with names or handles.
Images: Use your own or licensed stock images. In 2014, Getty Images sued Microsoft for using their photos in an email marketing tool without permission.
Promotional offers: Be careful when referencing competitors. Focus on your own products to avoid trademark issues.

Email Element	Fair Use Guideline
Newsletter content	Brief excerpts, link to full articles
Customer reviews	Get explicit permission
Images	Use own or licensed stock photos
Competitor mentions	Focus on own products, avoid comparisons

Remember: When in doubt about fair use in marketing, consult a lawyer. The risks of getting it wrong can be costly, both financially and for your brand’s reputation.

10. Fair Use Around the World

10.1 Fair Use Differences by Country

Fair use rules vary widely across countries, creating challenges for global marketers:

Country	Fair Use Approach
USA	Four-factor test (purpose, nature, amount, market effect)
UK	"Fair dealing" with specific allowed purposes
Canada	Fair dealing, includes parody and education
Australia	Limited fair dealing provisions
EU	No uniform doctrine; specific exceptions vary by country

10.2 Real-World Examples

1. Google Books Project (USA, 2015)

Google scanned millions of books without permission
Court ruled it was fair use, citing public benefit and limited display of content
Outcome: Expanded fair use interpretation for digital libraries

2. The Pirate Bay Case (Sweden, 2009)

Founders convicted for copyright infringement
Swedish law doesn’t recognize fair use, leading to strict enforcement
Outcome: Highlighted the lack of fair use protections in some countries

3. Deckmyn v. Vandersteen (EU, 2014)

European Court of Justice ruled on parody as fair use
Established that parody must strike a balance between copyright and free expression
Outcome: Created a EU-wide standard for parody exceptions

10.3 Tips for Global Marketing

1. Research local laws: Understand copyright rules in each target market

2. Consult regional experts: Work with lawyers familiar with local IP laws

3. Create region-specific guidelines: Develop separate fair use policies for different areas

4. Use universal content: Create original materials to minimize risks

5. Stay updated: Monitor changes in global copyright laws

10.4 Key Takeaways for Marketers

Fair use isn’t universal: What’s okay in one country may be illegal in another
Be extra careful with parody and criticism in countries without strong fair use protections
When in doubt, get permission or create your own content
Consider geo-blocking content that might violate local laws in certain regions

"The global patchwork of fair use laws creates significant challenges for marketers. It’s crucial to approach each market with fresh eyes and local expertise." – Jane Smith, International Copyright Attorney

Remember: Fair use rules are complex and always changing. When running global campaigns, it’s best to play it safe and seek legal advice.

11. Wrap-up

11.1 Key Fair Use Points for Marketers

Here’s a quick recap of the main fair use points for marketers:

Factor	What to Consider
Purpose	Why are you using the copyrighted material?
Nature	What type of work is it?
Amount	How much are you using?
Market Effect	Does it impact the original work’s market?

Remember:

Keep detailed records of your fair use decisions
Get legal advice for high-stakes campaigns
Create original content when possible
Stay updated on copyright laws

11.2 Staying Informed About Fair Use

To keep up with fair use practices:

Follow copyright experts online
Attend copyright webinars and workshops
Join marketing groups with legal resources
Set up Google Alerts for fair use news
Train your team yearly on fair use

11.3 Real-World Fair Use Lessons

Recent fair use cases offer valuable insights:

Oracle v. Google (2021)
- Supreme Court ruled Google’s use of Java API was fair use
- Showed how transformative use can outweigh commercial purpose
Dr. Seuss Enterprises v. ComicMix (2020)
- Court found "Oh, the Places You’ll Boldly Go!" wasn’t fair use
- Highlighted risks of using well-known brands without permission
Goldman v. Breitbart News (2018)
- Embedding tweets without permission ruled as copyright infringement
- Reminded marketers to get consent before using social media content

These cases show the importance of careful consideration in fair use decisions.

11.4 Fair Use Best Practices

Do	Don’t
Use small portions of copyrighted work	Copy large chunks without permission
Transform the original content	Use material without adding new value
Consider market impact	Ignore how your use affects the original
Document your fair use reasoning	Assume all marketing use is fair
Seek legal advice when unsure	Take unnecessary risks with copyrighted material

12. More Fair Use Information

12.1 Fair Use Evaluation Tools

To help marketers assess fair use, several online tools are available:

Tool	Features	Website
Stanford University‘s Fair Use Evaluator	– Guides through four fair use factors – Provides detailed report	fairuse.stanford.edu
Columbia University‘s Fair Use Checklist	– Printable checklist for fair use assessment – Helps track decision-making	copyright.columbia.edu/basics/fair-use/fair-use-checklist.html
U.S. Copyright Office’s Fair Use Index	– Searchable database of fair use court decisions – Shows how courts apply fair use principles	copyright.gov/fair-use

These tools can help, but don’t replace legal advice for complex cases.

12.2 Key Fair Use Resources

Stay informed about fair use with these sources:

Source	Information Type	Why It’s Useful
Copyright.gov	U.S. copyright laws and rules	Main source for legal info
Creative Commons	Licensing options, fair use guidelines	Helps understand copyright alternatives
EFF.org	Digital rights, fair use in tech	Updates on digital marketing issues
Copyright Alliance	Industry views on copyright	Insights from content creators
ARL.org	Fair use in academic settings	Useful for educational marketing content

Check these sources often to stay up-to-date with fair use best practices and avoid legal issues in your campaigns.

12.3 Recent Fair Use Cases

1. Google LLC v. Oracle America, Inc. (2021)

Supreme Court ruled Google’s use of Java API was fair use
Showed how changing the original use can outweigh making money from it
Google’s lawyer, Thomas Goldstein, said: "The decision gives legal certainty to the next generation of developers whose new products and services will benefit consumers."

2. Dr. Seuss Enterprises v. ComicMix LLC (2020)

Court found "Oh, the Places You’ll Boldly Go!" wasn’t fair use
Showed risks of using famous brands without asking
The judge stated: "Although ComicMix’s work is no doubt transformative, it does not skew the balance of the four factors in its favor."

3. Goldman v. Breitbart News Network, LLC (2018)

Court ruled embedding tweets without permission can infringe copyright
Reminded marketers to get consent before using social media content
Judge Katherine Forrest wrote: "Having carefully considered the embedding issue, this Court concludes… that when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right."

These cases show why marketers need to think carefully about fair use decisions.

FAQs

How do I get permission to use a song in a commercial?

To use a song in a commercial, you need to get several permissions:

Music Publisher: For sync rights
Record Label: For master use rights
Artist: Sometimes needed

Getting these rights can be tricky. Here’s what you should know:

Step	Details
Start early	It can take weeks or months
Budget wisely	Popular songs can cost $500,000+
Consider alternatives	Royalty-free music or original compositions

Real-world example:

In 2013, Microsoft paid an estimated $3 million to use the Rolling Stones’ "Start Me Up" in their Windows 95 launch campaign. The high cost paid off – the campaign helped Windows 95 sell 7 million copies in its first five weeks.

Steve Koenig, a music supervisor for major brands, says: "Always assume you need permission. It’s better to ask and be told no than to use something without asking and face legal issues later."