Fair Use Isn't a Free Pass: Debunking 5 Common Myths
Mahalia Crotz-Kerbs
Fair use gets thrown around like creative confetti—sprinkled onto borrowed content in hopes it’ll stick. But few understand what this legal doctrine actually protects—and what it doesn’t. Behind every reposted meme, fan-made product, or “remixed” artwork lies a fragile line between inspiration and infringement.
Let’s cut through the noise and expose five of the most misleading myths about fair use. The truth will not only protect your work—it’ll sharpen your creative ethics.
Myth 1: “If I don’t make money, it’s automatically fair use.”
Reality:
Monetary gain is only one factor considered in a fair use analysis—not the deciding one. Courts look at a four-factor test, and even unpaid or nonprofit uses can still be considered infringement. A fan art print you give away for free could still harm the market for the original.
Myth 2: “If I change it, it becomes transformative and legal.”
Reality:
Transformation isn't just about adding filters or remixing elements—it has to add new meaning, message, or expression. Simply altering colors, cropping, or adding a caption is rarely enough. Courts have become stricter, especially after the Andy Warhol Foundation For the Visual Arts, Inc v. Goldsmith et al. This ruling clarified that superficial changes to an artist’s work doesn’t meet the threshhold to justify fair use.
Let’s just quickly dive into this bad boy for a second. What had happned was… the Andy Warhol Foundation wanted to license a painting of a photograph by Lynn Goldsmith. The argument was that becasue Andy Warhol painted over the photograph with orange paint, and naming it “Ornage Prince,” that it was no longer a copyrighted work of Goldsmith. The issue. Goldsmith has granted a limited time license to Vanity Fair in 1984, as an “artist reference for an illustration.” They commissioned Andy Warhole who created a purple silk screen that did not distort the original image of the photograph or change what the photograph represented, aglamore shot of The Artsit Formaly Known as Prince. At print of the November ’84 issue Goldsmith was credited as the “source photograph”, which she was paid $400.
Fair Use Isn't Free cont...
Goldsmith never relinquished her copyright claim to her work, in fact, she sold a limited license (onetime use) that allowed creative manipulation up to the point that it did not destroy or distort her photograph. Thus, keeping her copyright intact! However, in 2016, after the death of TAFKAP, the parent company of Vanity Fair (Condé Nast) approached AWF to reuse the silkscreen of TAFKAP. Condé Nast, finding that Warhol had created numerous silkscreens of the photo chose to run the “Orange Price”. Goldsmith, only learning that Warhol had recreated the silkscreen outside of the limited license notified AWF that she believed that this was a breach of her copyright.
A brief aside, it’s so crazy how people in the wrong are so quick to weaponise the law. Anyway, long story short the Supreme Court!, of the United States, (Brandi and Kirstin I miss you. You have no idea how I yelled that out loud while typing, lol) ) sided with Goldsmith and added an extra layer of copyright protection for underrepresented artists.
Myth 3: “If I credit the original artist, I’m in the clear.”
Reality:
While crediting is ethically good practice, it doesn’t equal permission. Think of it this way: crediting someone doesn’t erase the fact that you copied their work without a license. This myth is particularly dangerous because it creates a false sense of immunity.
A prime example is the Fair Use Checklist attached to this article.
Myth 4: “Educational use is always fair use.”
Reality:
This is a half-truth. While fair use laws do make allowances for education, it’s not a blanket exemption. Context matters. Using a copyrighted image in a private classroom PowerPoint may be fair—but printing that image in a published educational workbook might not be.
Myth 5: “If I found it online, it’s public domain.”
Reality:
Just because something is on the internet doesn’t mean it’s free to use. Most creative content online—photos, videos, songs, illustrations, even memes—is protected by copyright the moment it’s created. Public access is not the same as public domain.
Conclusion: Clarity Protects Creativity
The fair use doctrine was designed to strike a balance—not to hand out artistic hall passes. When artists misunderstand it, they risk undermining both their own rights and the rights of others. Knowing the boundaries gives you the power to create boldly and responsibly.
If you are ever in doubt if your use of someone else's material falls under the fair use code then use this check list to help. (Link Columbia’s Fair Use check list by Kenneth D. Crews.
Creative Covenant
“Do not steal from one another. Do not lie to each other. Do not swear by my name falsely, which would be profaning the name of your G-d; I am Adonai.”
— Leviticus 19:11–12, CJB
This passage reminds us that creative theft—no matter how subtle—grieves the heart of the Creator. As artists made in His image, we’re called to build with integrity, not shortcuts.
About the Author
Mahalia Crotz-Kerbs is a visual artist, copyright advocate, and founder of MinkBerry™ Studio & Publishing. With a background in criminal justice, policy studies, and multimedia design, she brings an artist’s legal perspective to the world of creative rights. She writes from a Messianic Jewish lense with a heart for protecting artists and giving them a haven so that they will not hide their light under a bushel.