Fair Use Law Explained: What Creators, YouTubers & Musicians Need to Know (2026 Guide)

About the author: Scott Lesowitz is a 2007 Harvard Law School graduate and former Assistant United States Attorney whose civil litigation practice is based in Southern California. Scott is a founding partner of Lesowitz Gebelin LLP. Scott lives in San Diego with his wife, three children, and bernedoodle. Scott represents clients throughout California, including San Diego, Los Angeles, and Orange Counties.

Fair use is one of the more unpredictable and fact-specific areas of copyright law. Unsurprisingly, there are many popular misconceptions regarding fair use. In this article, I describe what fair use is and address seven common misconceptions I have heard from clients and have seen on the internet about fair use.

If you have a legal issue involving fair use and wish to have a consultation with an attorney experienced with fair use, please feel free to contact me. I represent both plaintiffs and defendants.

An Overview of Fair Use

Fair use allows someone to use a copyrighted work for free and without permission from the copyright owner. Essentially, fair uses are not included among the extensive number of exclusive ownership rights that copyright law bestows upon copyright owners.

The U.S. Copyright Act seemingly provides clear guidelines regarding what fair use is: “[T]he fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” (17 U.S.C. § 107.)

Unfortunately, it is often difficult to predict whether a court will find a particular use of copyrighted material to be fair use or not. In the real world, not all uses of copyrighted works for criticism, comment, news reporting, teaching, scholarship, or research are fair uses.

For example, in the case of Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003), the Ninth Circuit grappled with an Elvis Presley documentary’s use of clips of live musical performances by Elvis. The Ninth Circuit ruled that the use of some of the clips was likely fair use, while others were likely not.

One reason for this frequent uncertainty is that the Copyright Act instructs courts to use a flexible four-factor test when determining whether a use of a copyrighted work is a fair use or not. This means there are often grey areas, with cases being very fact-specific and often turning on battles over the application of case law.

The four fair use factors are: (1) “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” (2) “the nature of the copyrighted work,” (3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” and (4) “the effect of the use upon the potential market for or value of the copyrighted work.” (17 U.S.C. § 107.)

Generally speaking, courts expect someone claiming fair use not to have used more of the copyrighted work than reasonably necessary to accomplish the fair use purpose. For example, if a documentary only needs to use a ten-second clip for its commentary and news reporting, the documentary should not use a 20-second clip.

For example, in Elvis Presley Enterprises, the Ninth Circuit found, “It would be impossible to produce a biography of Elvis without showing some of his most famous television appearances for reference purposes. But some of the clips are played without much interruption, if any. The purpose of showing these clips likely goes beyond merely making a reference for a biography, but instead serves the same intrinsic entertainment value that is protected by Plaintiffs’ copyrights.”

There are some uses that will clearly be fair use, some that will clearly not be fair use, and then there are those difficult cases in the middle. It is those cases in the middle where an experienced attorney can be so important.

Making matters more unpredictable, courts may not automatically give each factor equal weight. Therefore, there could be a case where only one of the four factors favors fair use, but it so strongly favors the purported fair user that a court finds fair use. Conversely, there could be a case where only one factor weighs against fair use, but it so strongly weighs against the purported fair user that a court finds no fair use. Furthermore, courts may consider factors beyond the four specified in the statute.

For example, it will be safe to assume that a court would find fair use when a music theory YouTuber plays a short clip of the chorus of a song and directly comments on that clip to further the teaching. While a YouTuber makes (some) money from the video, the use is educational, the amount of the original used is small, and people are not going to use the clip in the YouTube video as a substitute for purchasing a copy of the song (or, nowadays, streaming the song).

Conversely, if a YouTuber plays the majority of a song and simply says that the song was “awesome,” that would almost assuredly not be fair use. That brief commentary that the song was “awesome,” should be found to be too inconsequential.

But then there can be that hard-to-predict middle ground, such as where a YouTuber uses a lengthier clip of a song in a video, and the clip relates to a topic being discussed in the video, but the commentary about the specific clip used seems light.

For example, in one case, the Ninth Circuit ruled that there was no fair use where there was “wholesale copying sprinkled with [limited] written commentary.” Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. 2012). And as the Ninth Circuit has found on multiple occasions, “Voice-overs do not necessarily transform a work.” E.g., McGucken v. Pub Ocean Limited, 42 F.4th 1149 (9th Cir. 2022).

[Additional Sources: Sedlik v. Von Drachenberg, 2026 WL 17166 (9th Cir. 2026) (selected for publication); Kadrey v. Meta Platforms, Inc., 788 F.Supp.3d 1026 (N.D. Cal. 2025).]

Seven Fair Use Myths that Can Get You Sued

Here I address seven common misconceptions of fair use that I have encountered.

Misconception One

If I use less than five seconds of a song or movie then it is fair use.

Reality

Even using a very small amount of a copyrighted work will not be fair use if there is no fair use purpose. (Although, there could be other defenses to copyright infringement.) As the court in Michaels v. Internet Entertainment Group, Inc., found, “the fact that [the defendant] proposes to use only few seconds of the work does not in this case weigh in favor of fair use.”

For example, that a three-second clip of a dog video is very cute does not constitute a fair use purpose such as criticism, comment, news reporting, teaching, scholarship, or research. While the very brief clip might not serve as a substitute for the original, a court would consider that one is expected to pay a fee to license the use of the clip from the dog video.

Misconception Two

The use of a lengthy clip can never be fair use.

Reality

A use of a short clip is more likely to be fair use than a use of a long clip. However, if one reasonably needs to use a lengthy clip for the fair use purpose, and a shorter clip will not do, then a court may find fair use.

For example, in the case of Estate of Smith v. Cash Money Records, Inc., the use of 35 seconds of a song was found to be fair use. As another example, in Monster Communications, Inc. v. Turner Broadcasting System, Inc., 5 F.Supp.2d 823 (C.D. Cal. 1998), the court found that the use of film clips of up to two minutes in a television biography were likely fair use. And in Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Reform, 868 F.Supp.2d 962 (C.D. Cal. 2012), the court found that a parody’s use of 2 minutes and 2 seconds of a video constituted fair use.

While it will likely only be applicable in rare instances, courts say that there even can be cases where there is fair use even though the entirety of the original is used.

Misconception Three

If a use is educational, it is automatically fair use.

Reality

While an educational use of copyrighted material is an example of fair use, a court still looks at all four factors or the fair use test. For example, universities use textbooks for the purpose of teaching students. However, universities generally cannot make copies of entire textbooks and hand them out to students.

Misconception Four

Someone making a profit cannot claim fair use.

Reality

While the fact that someone claiming fair use earned a profit will generally weigh against a finding of fair use, those earning a profit certainly are not disqualified from claiming fair use. For example, newspapers and television news programs are for-profit endeavors, but they are some of the most frequent fair users.

Misconception Five

If my work is transformative, that means it is necessarily fair use.

Reality

The Supreme Court clarified in 2023 in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), that not every use that “adds some new expression, meaning, or message” automatically has a proper fair use purpose. As the Supreme Court stated, “Otherwise, ‘transformative use’ would swallow the copyright owner’s exclusive right to prepare derivative works.”

Misconception Six

I can use copyrighted material if I include a prominent citation to the original.

Reality

While it may be good form to cite the original–and doing so may be required under academic or journalistic standards–citing the original is not one of the four factors in the fair use analysis and will not turn the use of copyrighted material into a fair use.

Misconception Seven

If my use of copyrighted material is fair use, I don’t need permission to use the material, but I still need to pay the copyright owner for the use of his or her original creation.

Reality

Fair use is free use. Copyright law does not provide authors with ownership rights over fair uses of their copyrighted works. A fair user does not need permission to use the copyrighted material and does not need to pay any kind of licensing fee.

[Additional Sources: 17 U.S.C. § 107; Chosen Figure LLC v. Kevin Frazier Productions, Inc., 795 F.Supp.3d 1232 (C.D. Cal. 2025); Estate of Smith v. Cash Money Records, Inc., 253 F.Supp.3d 737 (S.D. NY 2017); Monster Communications, Inc. v. Turner Broadcasting System, Inc., 935 F.Supp. 490 (S.D. NY 1996).]

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