COmmON FaIR Use myThs
IF I’m NOT maKING aNy mONey OFF IT, IT’s FaIR Use. Noncommercial use is indeed one of the considerations for fair use, but it is hard to define. If a work is going public, it is good to be able to rely on the rationale of transformativeness, which applies fully even in
“commercial” settings.

FaIR Use CaN’T Be eNTeRTaINING. A use is no less likely to qualify as a fair one
because the film in which it occurs is effective in attracting and holding an audience.

IF I TRy TO lICeNse maTeRIal, I’Ve GIVeN UP my ChaNCe TO Use FaIR Use.
Everyone likes to avoid conflict and reduce uncertainty, and a maker may choose to
seek permissions even in situations where they may not be required. Later, a maker
still may decide to employ fair use. The fact that a license was requested—or even
denied—doesn’t undercut an otherwise valid fair use claim. If a rights holder denies
a license unreasonably, this actually may strengthen the case for fair use.

I Really NeeD a laWyeR TO maKe The Call ON FaIR Use. Fair use is a part of the
law that belongs to everyone. A lawyer usually works for a client by reducing risk; in copyright law, that often means counseling purchase of rights for all uses of copyrighted
material. If clients tell lawyers that they want to assert their rights (something that has
a very low risk, if they understand what their rights are) then lawyers can recommend
appropriate policies; but lawyers need to be told what their clients want.