When Is Fair Use Not Fair? A Guide for Editors and Publishers

What Is Fair Use and When Does It Apply?

Fair use is a legal principle that allows limited use of copyrighted material without permission, typically for specific purposes such as criticism, commentary, news reporting, teaching, scholarship, or research.

In the US, and applicable more generally, fair use is defined in assessment of four main factors:

1. The purpose and character of the use (for example, commercial versus educational, or transformative versus derivative)
2. The nature of the original work
3. The amount and substantiality of the portion used
4. The effect of the use on the market for the original

However, this framework doesn’t guarantee protection. If your use competes with the original, isn’t transformative, or uses more of the work than necessary, it may fall outside fair use, even for educational or nonprofit contexts.

In the UK and EU, there is an equivalent concept called “fair dealing,” and it is much narrower. This use is only allowed for purposes such as quotation, criticism, review, or news reporting, and the amount used must be justified. Broad or incidental use is less likely to qualify as fair here.

Does Fair Use Cover Parody, Criticism, or Educational Use?

In many countries, these categories are protected to a degree, but not absolutely.

• Parody & Satire:
  In the US, parody can qualify as fair use if it comments on or critiques the original work. However, satire, which uses a work to comment on unrelated themes, is riskier and less protected. In Europe, parody is recognised under some national laws (such as in France and Germany) but must pass stricter tests.
• Criticism & Commentary:
  Quoting from a work or showing it for the purpose of critique is generally covered under fair use or fair dealing, as long as attribution is given and the use is clearly contextualised.
• Educational Use:
  Many mistakenly believe every use in education qualifies. In fact, a jurisdiction may only recognise classroom use under very limited conditions (such as face-to-face instruction at a nonprofit institution with limited scope). In short, context, scale, and intent matter. Simply labelling something “educational” doesn’t exempt it from copyright rules.

→ See our article on Educational Use for more information

How Much of an Image Can I Legally Use Without a Licence?

There is no legal minimum threshold for using “just a bit” of an image. Even using part of a visual work, especially one that represents the “heart” or distinctive element of it, can be considered infringement.

In US case law, copying a small portion of an image has still been found to violate copyright when that portion was qualitatively significant. In the UK, even using a cropped or altered version of an artwork can infringe copyright unless a valid exception applies.

Do Fair Use Laws Vary Internationally?

Yes, and sometimes dramatically.

• US: The most flexible “fair use” doctrine, though still evaluated case by case.
• UK and European Union: Use is limited to more tightly defined exceptions under “fair dealing”.
• Canada: Adopts a “fair dealing” approach with clearer guidelines for education, criticism, and private study.
• Australia: Uses a “fair dealing” system with rigid categories and stricter application than the U.S.
• China & Japan: Have their own fair dealing exceptions but enforce copyright laws rigorously and typically require permission for most uses.
• Global Note: International licensing is best approached with the assumption that if in doubt, permission is required. No single country’s laws offer global protection.

If you are publishing for an international audience, for example distributing a textbook or exhibition online, it is safest to seek licensed images from an agency to ensure compliance across jurisdictions.

→ See more specific knowledge on our International Licensing services
 

Tips for Minimising Legal Risk When Citing Fair Use

1. Assess all four factors (or local equivalents) carefully before claiming fair use.
2. Use only what is necessary, and avoid, if possible, using the most recognisable or central part of an image.
3. Always attribute the source and copyright holder, even if not legally required.
4. Document your rationale. If you’re claiming fair use, keep notes on why.
5. When in doubt, license the image. Agencies like Bridgeman Images offer clear rights-managed content, especially for high-quality or historical visuals.

Final Word

Fair use is a useful principle, but it is not a shortcut. Its application varies globally, and its misuse can lead to legal issues, particularly for publishers, educators, and creative professionals working across borders. For peace of mind and respect for creators, licensing remains the safest and most ethical route when using visual content.

→ Get in touch with a Bridgeman consultant today