Fair use seems inherently contradictory. I need help understanding the exact context. According to copyright, you need permission to use intellectual property but fair use says you don't need permission as long as you use the work under specific circumstances. Hypothetically, if a copyright terms explicitly stated it cannot be used by others and at the same time someone used this specific copyrighted content without permission in a context that matches the criteria of fair use, would the doctrine of fair use supersede the copyright?

  • 1
    The terms stated on a site or a license can't take away a right that you already have by law. See: How is internet archiving legal, when it appears to violate many websites terms of use?
    – Brandin
    Commented Sep 23, 2022 at 6:22
  • Copyright terms cannot control the use of something, only its reproduction, so you couldn't use copyright to prohibit e.g. the use of a recipe in the sense of stopping someone cooking that thing. Controlling use would depend on licensing, which is a whole other area of law.
    – Stuart F
    Commented Sep 23, 2022 at 13:18

2 Answers 2


Almost all works recorded in some fixed way that are not a couple of hundred years old or created by a government agency are protected by copyright.

In the absence of an exception to the general rule, copying a work that is protected by copyright is copyright infringement, which can be a basis for the copyright owner to sue the infringer. This can also be a basis for criminal liability is certain additional elements are proved and a prosecutor proves a case of copyright infringement in a criminal case.

But, there are some important exceptions to this general rule of what constitutes legally sanctionable copyright infringement.

The most important exceptions to the general rule have the character of affirmative defenses. In order words, if someone sued for copyright infringement and the person sued admits that they copied the copyright protected work, they can use these exceptions to avoid having legal liability.

One of the exceptions is the permission from the copyright owner to use the copyright work. This can be either in the form of affirmatively given permission to use the copyrighted work in a particular way (called an "express license" to use the copyrighted work), or in the form of permission to use the copyrighted work that can be inferred from context (called an "implied license" to use the copyrighted work).

Another of the main exceptions is "fair use". If the way a copy of a copyrighted work is used constitutes fair use, the person using the copyrighted work without an express or implied license to do so it not liable for copyright infringement.

Of course, while you don't need more than one exception to the general rule to avoid liability for copyright infringement, you can have more than one.

For example, you can use copyrighted work in a way that would constitute "fair use" and not give rise to liability for that reason if you were sued, even if you can't be sued anyway because you already have been given permission by the owner of the copyright to use the copyright in the way that you did.

It isn't a case of a contradiction. It is a case of a general rule that has exceptions.


Yes, fair use supersedes the requirement of permission from the copyright holder.

In general, the holder has the exclusive right to copy the work, publicly perform it, create derivative works, and so on.

If you copy the work without permission or otherwise infringe the holder's exclusive rights, you will generally have committed a copyright violation, but 17 U.S.C. § 107 explicitly excepts fair use from the definition of an infringement:

The fair use of a copyrighted work ... is not an infringement of copyright.

Therefore, you generally have no duty to obtain permission from the copyright holder to make fair use of a work, no matter what restrictions the holder has placed on it.

  • Although the holder and the person who copies may well have different views of how 'fair' the use was, so the copier may well still get sued (and may win, or may not).
    – Jon Custer
    Commented Sep 22, 2022 at 19:46

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