The Difference Between Fair Use and Public Domain in Copyright

When you’re in the business of creating content, it’s common to borrow or recycle ideas that already exist in the world. Every content creator will tell you that you shouldn’t reinvent the wheel.


However, copyright infringement is a serious offense that can land you in a load of trouble. Working off of an already-existing idea or piece of work or using it to draw attention to your company’s products or campaigns can be problematic. It’s important to understand the difference between fair use and public domain when it comes to intellectual property and copyright.


Anytime you are unsure about using or protecting intellectual property, it’s best to consult with an attorney. At Angie Avard Turner Law, LLC, I help creative entrepreneurs protect what they create. Based in Georgia, I support business owners around the nation. Schedule your time to talk today.


A Quick Reminder About Copyright Law



Under copyright law, original creations have legal protection from infringement from the moment you produce them in a tangible form. This intellectual property law covers things like literary works, graphic designs, sound recordings, and more. And the protection exists whether the author seeks a legal registration or not.


If you infringe upon someone’s copyright, you can face substantial penalties and legal action. Due to this risk and the general ickiness of using someone’s work without their permission, you must be careful about reusing content you didn’t create.


What Does “Fair Use” Mean?

In the copyright world, fair use presents a legal exemption that allows someone to use copyrighted material without first having to gain the express permission of the original creator. Fair use is a defense that someone can raise in response to claims of copyright infringement.


Fair use protects users of copyrighted material if they use it for a legally-allowed purpose. However, it can be challenging to defend in some cases. So the best course of action is to receive express permission from the copyright owner to use their content.



Without permission, the law considers the following four pillars to determine if infringement occurred:

  • The purpose and character of the use

  • The nature of the copyrighted work

  • How much of the work someone used

  • The effect on the potential market for or value of the work

Here is a deeper look at these four areas of consideration.


Character of Use

Let’s cut to the chase here. If you use copyrighted material to promote or sell your products and services, that’s not fair use. Commercial use has the intent and potential to make a profit for the user, and that absolutely infringes on the author’s protection.


On the other hand, fair use is often in play when you use something purely for educational purposes without intending to make money. This scenario is why teachers can use so many texts and sources without gaining permission for all the materials.



Copyright law also recognizes a transformative use of protected creations. This situation occurs when you change the original work’s content, meaning, or use. Commentaries, criticisms, and parodies are generally considered transformative. Hence, the existence of Weird Al’s music in the world.


Even when fair use is applicable, it’s critical that you cite the source when using copyrighted work. Without proper acknowledgment, your fair use argument won’t protect you.


Nature of the Work

On some level, fact vs. fiction comes into play when discussing the fair use of copyrighted material. If the original work is essentially a creative piece, it is much less likely to fall under fair use. However, if the work is factual or fact-based, you are more likely to support a fair use claim.


Additionally, fair use generally doesn’t apply to unpublished works compared to published pieces.


How Much of the Original You Use



When someone claims fair use as a defense against infringement, the court will consider how much of the original the person used. That is, if you use a small piece of a large work, fair use may apply. When you use a significant portion of the original, no matter how big, a fair use argument probably won’t work.


For example, referencing and citing a few sentences from a 700-page novel is likely legal. However, using a whole stanza of a pop song probably isn’t. In the latter case, the courts may determine that you used too large a portion of the original work.


Effect of Use on Potential Markets

If using a copyrighted work can diminish the market and value of the original, fair use generally will not apply. A great example of this situation is the proliferation of knock-off purses and shoes in some cities. By mimicking high-end products, knock-off manufacturers lessen the value of the original designs and creations.


What is Public Domain?



Creative materials and works that do not have copyright, trademark, or patent protection are part of the public domain. Anyone can use this type of content without gaining permission from the author, and no individual can own it.


Public domain is in effect in the following situations:

  • The original creator died at least 70 years ago.

  • The copyright lapsed at least 70 years ago.

  • The original work was government-created. Government works do not receive copyrights.

  • There is no known original author.

When a work is in the public domain, you can use it without fear of infringement. If original authorship is known, you must cite or attribute the work. But you do not have to gain express permission to repurpose the content.


The fundamental difference between fair use and public domain is the existence of a copyright. Under fair use, copyright is in place, and the user attempts to prove a legal exemption to that protection. Under public domain, however, no current copyright exists.


As a content creator for your business or organization, public domain works are a safer avenue to pursue. Fair use can be difficult to prove and defend if the author chooses to pursue legal action.


Public Domain Myths



The online world we now inhabit can make it seem as if everything is in the public domain. One quick Google search can provide you with millions of images in milliseconds. And they are just sitting there for the taking. Or so it may seem.


Here are some common myths to watch out for when deciding to reuse or repurpose something you find online or elsewhere. A work is NOT public domain simply because:

  • It’s commonly known.

  • You found it online.

  • There isn’t a copyright notification.

  • It is out of print.

Protect Yourself All Around

Whether you are the creator of a work or want to use something that already exists, you need to know how to protect yourself and your interests. By hiring an intellectual property attorney, you can cover your legal bases.


At Angie Avard Turner Law, LLC, I help business owners navigate contracts, copyrights, trademarks, and more. If you have questions, you can reserve a time to talk with me. And for quick tips on common issues, check out my podcast, where I discuss frequently-asked legal questions. I can’t wait to connect with you!


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