There is no simple formula or method to easily determine whether a particular use of a copyrighted work is a fair one.
The copyright statute gives us four factors to apply on a case-by-case basis
The fair use factors are generally taken to mean:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. (click to expand)
How are you using the copyrighted work?
If your use can be considered “transformative,” this factor will weigh in your favor.
In other words, does your video alter the original work to give it a new meaning or shed new light on it? Uses that directly appraise or comment on the original work are more likely to be transformative because they add a new meaning or message. On the other hand, are you using the material because you needed to put something in a particular scene and the copyrighted work happens to fit? Such uses will probably point away from fair use.
Your use doesn’t necessarily have to be “transformative” to qualify for fair use (although it definitely helps). Any use that furthers the public interest could potentially tip this factor in your direction. Parody, criticism, news reporting, scholarship, and commentary are all areas where courts have traditionally recognized fair use.
This factor also takes into account whether your use is “commercial” or “noncommercial.” Videos that seek to make money or promote a product or brand are harder to justify under this factor. While videos that are purely for personal or educational uses are weighted a bit more toward fair use, non-profit intent does not automatically qualify you for fair use.
The nature of the copyrighted work. (click to expand)
What type of copyrighted work are you using?
This factor focuses on the content that is being re-used. It weighs against fair use if the original work is highly creative (like a song, movie, or TV show), and will weigh toward fair use if the original work is less creative (like a phone directory, scientific data, or quotes from a historical record).
The amount and substantiality of the portion used in relation to the copyrighted work as a whole. (click to expand)
How much of the copyrighted work are you using? Is the portion you are using the “heart” of the original work?
Generally speaking, using a great deal of the copyrighted work weighs against fair use. Less extensive use generally weighs in favor of fair use. What is considered extensive depends on the total size of the copyrighted work at issue. There are no clear percentages or calculations that decide how much is too much or where fair use ends and copyright infringement begins. In addition, even relatively small uses can point against fair use if that small use is the “heart” of the work, such as a famous riff in a song or the climactic ending of a film.
The effect of the use upon the potential market for or value of the copyrighted work. (click to expand)
Can your use of the copyrighted work stand as a potential substitute for the original?
Uses that might negatively affect the market for the original work strongly weigh against fair use. Uses that have little to no effect will generally weigh in favor of fair use.
If people could watch your video instead of the original work, this factor is less likely to favor you. The point of fair use is to encourage the creation of more and better works of art, not to enable you to profit from works of others.
These four factors are more than a checklist, and there is no formula for adding up the fair use factors. They have to be analyzed at an individual level and taken together as a whole, but they might be weighted differently depending on the facts of your particular case.
Courts use these factors to decide whether a particular use qualifies, but remember that they can only do so after you have been sued for copyright infringement. The burden of establishing the fair use exception always falls on the person asserting it; the copyright holder does not have to prove the lack of fair use.
Different courts will interpret the factors in different ways. Claiming fair use always carries a certain amount of legal risk, but awareness of the factors above will help you decide whether you’re taking an acceptable risk.