In today’s digital world, sharing content has become easier than ever. However, this does not mean that everything you find on the internet is free to use. Fair use is one of the most misunderstood and misinterpreted areas of copyright law, especially for businesses, creators, and educators who rely on digital content daily. If you are considering using someone else’s content, you may be wondering what is allowed and what is not. Understanding how fair use works, therefore, is critical to help you avoid legal trouble while still allowing room for commentary and creativity.

What is Fair Use?

Fair use is a legal doctrine under Section 107 of the U.S. Copyright Act that allows limited use of copyrighted material without permission from the copyright holder. Fair use enables creators to protect their work while giving the public access and building upon creative works. Some common examples of fair use include criticism, commentary, news reporting, teaching, and research.

That said, using someone else’s content for these purposes does not automatically make it fair use. The courts will analyze the cases based on four specific factors.

The Four Factors of Fair Use

The courts consider the following factors together when determining fair use:

Purpose and Character of the Use

Here, the court will look at whether the use is commercial or nonprofit and if it is transformative. A transformative use means that the new content adds new meaning or purpose, such as commentary, parody, or education. While commercial use may lean against fair use, they are automatically disqualified.

Nature of the Copyrighted Work

If the material used is factual or non-fiction material, it is more likely to be considered fair use than when the case involves creative works like music, films, or novels.

Amount and Substantiality Used

Another factor courts consider is the portions of work used. While there is no fixed rule on percentages or word count, it is worth noting that even a short excerpt can be determined not to be fair use if it captures the “heart” of the copyrighted work.

Effect on the Market

If the use harms the original work’s market or replaces the need for it, fair use is less likely to apply. For fair use to apply, the use should not compete with or devalue the original.

Fair Use and Artificial Intelligence

The emergence of generative artificial intelligence (AI) has introduced further questions on fair use. AI tools typically generate text, images, and other content based on the training data. This raises key issues: Who owns AI-generated content? Are AI companies liable for copyright infringement? As it stands, if there isn’t human involvement in the arrangement or creation, there isn’t copyright in the generated work. But if there is human involvement, then there may be some protectable aspects in the final product.

One closely watched case, The New York Times v. OpenAI, addresses whether using copyrighted news content to train AI models constitutes infringement. If the ruling is in favor of the Times, it could reshape how AI companies source training data and require licensing or compensation going forward.

The Four-Factor Fair Use Test Under 17 U.S.C. § 107

Fair use is codified in Section 107 of the Copyright Act, 17 U.S.C. § 107. Courts evaluate fair use claims by weighing four non-exclusive factors: (1) the purpose and character of the use, including whether it is commercial or nonprofit educational; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the whole; and (4) the effect of the use on the potential market for, or value of, the original work. No single factor is controlling, and courts examine them together. The Supreme Court emphasized in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), that commercial use does not create a presumption against fair use, and that parody—a work that comments on the original—can qualify even when the entire original is copied.

The most important development in modern fair use doctrine is the concept of “transformative use.” A use is transformative when it adds new meaning, expression, or message rather than merely superseding the original. The Supreme Court revisited transformative use in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), narrowing its scope in commercial licensing contexts. The Court held that Warhol’s licensed use of Lynn Goldsmith’s Prince photograph for a magazine cover was not fair use because it served the same commercial purpose as the original—licensing for magazine publication—and therefore weighed against the foundation on factor one.

What Fair Use Does and Does Not Cover Online

Online fair use claims arise in several recurring contexts. News reporting and commentary can qualify when the use is genuinely transformative—quoting a video clip to critique it differs from reproducing it to avoid licensing costs. Educational use is not a blanket exemption: using copyrighted material in a classroom or educational video is analyzed under the same four factors. The fact that your use is non-commercial weighs in your favor, but it does not eliminate the need for a full fair use analysis, and it certainly does not protect purely commercial uses dressed up as education.

Thumbnail images in search engines have been addressed in Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003), where the court held that displaying small, low-resolution thumbnails in search results was transformative and fair. The Ninth Circuit extended this analysis in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). But these cases protect search engine indexing—not bloggers who embed or reproduce images they found online. Finding an image through a search engine does not mean it is free to use; it means the image was indexed, not licensed.

The DMCA Safe Harbor and Its Limits

The Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512, provides safe harbors for online service providers that host user-uploaded content, provided they meet specific conditions: they must not have actual or constructive knowledge of infringement, must not receive a financial benefit directly attributable to infringing activity when they have the right and ability to control it, and must act expeditiously to remove content upon receiving a properly formatted takedown notice. The safe harbor protects the platform, not the user who uploaded the infringing content.

If you receive a DMCA takedown notice and believe your use was fair, you can file a counter-notification under 17 U.S.C. § 512(g). A valid counter-notice must include your contact information, identification of the removed material, a statement under penalty of perjury that you have a good faith belief the material was removed in error, and consent to jurisdiction in federal court. The platform must restore the material within 10 to 14 business days unless the copyright owner files suit. Filing a false counter-notice or a false takedown notice both carry penalties, including damages for knowing misrepresentation under 17 U.S.C. § 512(f).

Common Digital Scenarios Where Fair Use Fails

Several common online practices are routinely mistaken for fair use. Reproducing an entire photograph or article, even with attribution, is almost never fair use—attribution does not substitute for permission or licensing. Sharing a news article by copying its full text to your website rather than linking to it is infringement, even if you credit the source. Using background music in a YouTube video is infringement unless you have a license, regardless of whether you monetize the video; “I didn’t make money from it” is not a defense. Recreating copyrighted logos, mascots, or character images for marketing materials is infringement, not fair use.

Memes occupy genuinely contested territory. When a meme comments on the original image or text—genuine parody or criticism—the case for fair use is stronger. When the original image is simply used as a funny background for an unrelated joke, the case weakens significantly. Commercial brands using memes in advertising campaigns face the greatest risk because commercial purpose weighs against fair use and the market harm to stock photography licensors is readily demonstrable. In Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), the court found most of Richard Prince’s appropriation art to be transformative, but the case turned on substantial alteration and commentary—not mere reproduction.

Protecting Your Own Content from Unfair Use

Copyright in original works of authorship attaches automatically upon creation and fixation in a tangible medium under 17 U.S.C. § 102. However, registration with the U.S. Copyright Office under 17 U.S.C. § 408 is a prerequisite to filing suit for works of U.S. origin. More importantly, timely registration—before infringement occurs or within three months of first publication—is required to recover statutory damages of up to $150,000 per willful infringement and attorney’s fees under 17 U.S.C. § 504(c). Without timely registration, you are limited to actual damages and the infringer’s profits, which are often difficult to prove.

To monitor for infringement of your images and text online, use Google’s reverse image search, services like TinEye, or automated monitoring platforms. When you find infringement, document it immediately with screenshots and timestamps before sending a takedown notice. For persistent infringers or commercially significant copying, federal litigation may be appropriate—copyright infringement carries statutory damages that make litigation economically viable even for individual creators with timely registrations.

If you have a question about whether your use of someone else’s content is fair use—or if your content is being copied without permission—contact the copyright attorneys at Revision Legal through the form on this page or call (855) 473-8474. Our copyright practice handles licensing, DMCA enforcement, infringement litigation, and registration nationwide.