Fair use disclaimer: complete guide with template
There’s a theory that every song that could ever be written has already been written — that every combination of notes and every possible melody already exists. While the veracity of this claim may be up for debate, the challenge of creating something truly original is very real across creative fields and may even extend to the content you create for your website and other digital platforms.
Whether you’re writing articles, producing videos, or sharing educational content, referencing existing works can be part of the process. You may even use parts of these works in your own creation.
This is where the need for fair use disclaimers comes in, which help businesses balance the need to reuse existing works in whole or in part with respect to copyright law. Much like data privacy compliance and its required notifications, fair use disclaimers show your audience that you’re committed to ethical, respectful content practices, helping to build trust through transparency.
What is a fair use disclaimer?
A fair use disclaimer is a statement that clarifies when copyrighted material can be legally used without the creator’s permission. Its primary purpose is to balance the interests of creators with the public’s interest in accessing and building upon existing creative works.
Fair use, or fair dealing, as it’s known in some countries, allows for limited use of copyrighted content for purposes like criticism, commentary, news reporting, teaching, and research. Types of works it generally applies to include:
- text: quotes from books, articles, and other written works
- visuals: photographs, artwork, infographics, and other visual media
- audio: music, podcasts, and sound recordings
- video: films, TV shows, and video content
In most countries where the fair use doctrine applies, it’s baked into copyright regulation. These provisions, like those in the US Copyright Act of 1976 and the UK’s Copyright, Designs and Patents Act 1988, aim to protect the rights of content creators while enabling certain freedoms that benefit society.
Although the content generally must be used in a way that transforms or adds new value to the original, this shouldn’t unfairly impact its market value or imply ownership or original authorship. It’s also important to note that a fair use disclaimer does not entitle users to infringe upon copyright for any reason, nor does it provide legal protection from such infringement.
The four factors of fair use
There are four factors that you can use to try to determine whether the use of a copyrighted work is fair. It’s recommended to consult with qualified legal counsel, especially if dealing with a new or unfamiliar jurisdiction or use case.
1. Purpose and character of the use
The first thing to examine is the intent behind the use. Some use cases, like teaching, commentary, and research, are more readily seen as fair as they contribute to expanding public knowledge on a subject.
Transformative use is another purpose that may be considered fair. When you add new expression or meaning to a work, it supports fair use more than if the content is simply republished or repurposed.
For example, a nonprofit organization with the goal of educating the public might be granted more leeway for reproducing an infographic on its website than an ecommerce website that is using the same work but in the pursuit of driving profit.
2. Nature of the copyrighted work
Next, consider the type of work that you’re using. Copyright law gives greater protection to original, creative works, like novels, films, and art, because they’re closely tied to their creator’s unique expression and creativity.
On the other hand, works that are more factual or generic, like news reports or technical documents, are more likely to meet fair use criteria because they are intended to be informational.
3. Amount and substantiality of the portion used
Third, assess both the quantity and quality of the portion of copyrighted work that you’re using in relation to the entire work.
Using a small, non-central part of a work is more likely to be considered fair than reproducing large swathes of it. However, if the excerpt represents a key, integral part of the work — known as the “heart” — it’s likely to weigh against fair use.
For instance, quoting a few lines from a lengthy article may be acceptable, but putting the most pivotal paragraph in quotation marks and pulling a blog post title from it, for example, could weigh against fair use.
4. Effect on the market value
Finally, consider whether the use adversely affects the market value of the original work. This helps protect creators’ economic rights and discourage uses that might harm their financial interests.
If the use negatively affects the copyright holder’s ability to profit from their work, whether because it reduces demand for the original or acts as a substitution, it’s less likely to be considered fair. For example, distributing free copies of a copyrighted textbook online would very likely harm sales, and would weigh against fair use.
Fair use disclaimers vs. copyright disclaimers
Both fair use disclaimers and copyright disclaimers provide context for using copyrighted material, but they serve distinct purposes.
A fair use disclaimer indicates that copyrighted content is used under fair use principles. A copyright disclaimer, on the other hand, asserts ownership of the content in question to protect the creator’s legal rights in relation to it.
It’s worth noting that neither disclaimer guarantees immunity from copyright infringement, but both can promote transparency and the responsible use of copyrighted content.
Does your website need a fair use disclaimer?
A fair use disclaimer is important for any website that uses copyrighted content. These disclaimers are usually relevant for:
- educational platforms: websites offering instructional content that may reference copyrighted works
- critique and commentary sites: platforms providing reviews, analyses, or either humorous or satirical coverage of books, films, music, or art
- news outlets: websites reporting current events that include excerpts from other sources
- nonprofit or advocacy websites: organizations promoting causes that use copyrighted material to support their message
- research-focused portals: platforms sharing findings that incorporate portions of copyrighted materials
A fair use disclaimer can enable you to comply with copyright laws and help you to reduce the likelihood that you’ll be held liable for incorrectly using copyrighted material. However, it’s important to keep in mind that a disclaimer does not provide blanket protection, and use can still lead to legal issues.
How to create a fair use disclaimer
Your fair use disclaimer needs to clearly communicate your intent to use a copyrighted work while avoiding any implication that you might own the content, which can make wording it challenging. Here’s how to craft a disclaimer that can help provide protection and stays within the bounds of the law:
What to include
The structure of a fair use disclaimer is simple. It should reflect the type of content you’re borrowing and how you’re using it. Here are the key elements you’ll need to include.
- Acknowledgment of copyright ownership: Note that you use copyrighted material on your website and clarify that you are not claiming ownership over the material.
- Statement of intent: Clearly state that the content is being used under fair use principles for purposes such as commentary, education, or critique.
- Purpose of use: Briefly outline how and why you’re using the content, especially if it is for educational, nonprofit, or transformative purposes.
- Legal disclaimer: Include a note that the fair use disclaimer does not provide absolute protection from copyright claims
Where to display it
For transparency, put your fair use disclaimer somewhere that is easy to find. You could feature your disclaimer at the bottom of any page on your website or wherever copyrighted material appears. You could also create a dedicated page on your website for your fair use disclaimer that you can link to.
Placing your fair use disclaimer page under a “Disclaimer” parent page on your website will give users easy access to all of your disclaimers, including your fair use, email disclaimer, and others, to further enhance trust in your brand.
Fair use disclaimer template
You can use the template below to get started on crafting your fair use disclaimer for your website. Our approach prioritizes clarity and plain language to make your disclaimer easy to understand.
Simply replace the placeholder text in the square brackets with specifics about your business to start creating a disclaimer that fits your specific needs. It’s also recommended to consult with qualified legal counsel.
Fair use of copyrighted material
At [company name], we’re dedicated to sharing accurate and valuable information through our [content type, e.g., blogs, videos, etc.]. Occasionally, we may reference or showcase materials created by other authors or experts to add context and depth to our content. We strive to use these materials under fair use principles, meaning our references are intended for educational and informational purposes.
To be clear: any copyrighted materials used here are owned by their respective copyright holders, and we do not claim ownership of this content. When we reference studies, images, or other materials, our goal is to inform and educate, not to profit from someone else’s work. We believe this aligns with fair use guidelines, but we’re always open to feedback from creators.
If you are a copyright holder and have concerns about how your content has been used, please feel free to reach out to us. We are committed to maintaining transparency and respecting copyright laws while delivering valuable content to our audience.
Disclaimer: This disclaimer is designed to align with fair use principles, but it does not guarantee legal protection. Copyright claims are ultimately determined by the law and depend on the specific circumstances surrounding each use.
Keep your website compliant and avoid legal issues
Using copyrighted materials thoughtfully and within the bounds of the law is vital to creating a better internet experience for everyone. In a world where originality can be elusive, fair use disclaimers give businesses the flexibility to reference existing works while respecting copyright laws.
Fair use disclaimers help you signal to your audience that you’re committed to ethical and transparent practices, enabling you to build a relationship based on trust. Plus, when used properly, fair use disclaimers contribute to fostering a culture that values both creative inspiration and copyright integrity.
Just as you need to respect intellectual property rights and abide by copyright laws to avoid legal issues, it’s equally important to comply with data privacy laws to respect customers’ privacy and personal data. That means informing your website visitors about the information you collect from and about them and how you use it.
Whether you’re looking for a privacy policy generator, cookie banners, or reliable information about privacy compliance, Usercentrics can help. We provide tools and resources to help you stay compliant, build trust with your audience, protect your ad revenue, and operate a transparent website.