Copyright vs. fair use in 2026: what every creator must know

If you are a creator, educator, business owner, or anyone publishing online, you have likely encountered the terms copyright and fair use. They are often misunderstood, and in 2026, the gap between them is wider than ever. Courts are rethinking long-held assumptions. Artificial intelligence is complicating ownership. And the cost of guessing wrong? Lost content, legal fees, or even billion-dollar settlements.

This post explains the real difference between copyright and fair use, what has changed in the courts, and why relying on "common knowledge" about fair use can sink your work. More importantly, we show you how Pellonia acts as your intellectual property protector, helping you enforce your rights and defend against overreach.

Copyright vs. Fair Use: Not Opposites, But Different Planes
What Copyright Actually Protects
Fair Use Is a Defense, Not a Permission Slip
The Four Factors of Fair Use (With 2026 Context)
What the Ninth Circuit's Tattoo Ruling Means for Creators
AI and Fair Use: The 2026 Split
Common Fair Use Myths That Still Get Creators Sued
How to Determine If Your Use Is Fair
When Fair Use Fails: What Are Your Options?
Frequently Asked Questions (FAQ)

Copyright vs. Fair Use: Not Opposites, But Different Planes

Let us be clear from the start: Copyright and fair use are not two sides of the same coin. They operate on different levels.

Copyright is a legal right. It vests in the creator the moment an original work is fixed in a tangible medium. You do not need to register it to own it, though registration gives you powerful enforcement tools.

Fair use is not a right. It is a legal defense you raise after someone accuses you of infringement. It does not prevent lawsuits. It does not automatically protect you from a DMCA takedown. It is what you argue in court, hoping a judge agrees.

In 2026, confusing the two can cost you everything.

What Copyright Actually Protects

Literary works (blogs, books, software code)
Musical compositions and sound recordings
Visual arts (photographs, paintings, tattoos)
Dramatic works and choreography
Motion pictures and other audiovisual works
Architectural works

What copyright does not protect: ideas, facts, systems, or names. It protects the expression, not the concept.

Duration: For individual authors, copyright lasts the life of the author plus 70 years. For works made for hire, it is 95 years from publication or 120 years from creation, whichever expires first.

Enforcement: If someone copies your work without permission, you can send a DMCA takedown notice. But if the other party claims fair use, the platform often leaves the content up. This is where many creators feel powerless.

Fair Use Is a Defense, Not a Permission Slip

Fair use is codified in Section 107 of the Copyright Act. It allows limited use of copyrighted material without permission for purposes such as:

Criticism
Commentary
News reporting
Teaching
Scholarship
Research
Parody

But here is the hard truth: No use is automatically fair. Not nonprofit use. Not giving credit. Not using 10 seconds of a song. Not adding a disclaimer.

Courts decide fair use case by case, weighing four factors. In 2026, those factors are being tested like never before.

The Four Factors of Fair Use (With 2026 Context)

Factor 1: Purpose and Character of the Use
Courts ask: Is the use transformative? Does it add new meaning, message, or expression? Or does it merely repackage the original?

Pure reposts are not fair use. Reaction videos? Sometimes yes, sometimes no. In 2025 and 2026, courts have grown skeptical of thin transformations. Changing a format (from print to video) is not enough. You must add something.

Noncommercial use helps, but it does not guarantee a win.
Factor 2: Nature of the Copyrighted Work
Using factual works (news, scientific papers) is more likely to be fair than using creative works (songs, novels, photographs). Courts protect the creative core.

Also, using unpublished work is less likely to be fair. The author has the right to control first publication.
Factor 3: Amount and Substantiality Used
There is no bright-line rule. No safe percentage. Using 5% of a work can be infringement if you took the "heart" of it. The Supreme Court has said that even taking a small but qualitatively important part can sink a fair use defense.
Factor 4: Effect on the Market
This is often called the most important factor. If your use serves as a substitute for the original, if someone could consume your work instead of paying the creator, that weighs heavily against fair use.

What the Ninth Circuit's Tattoo Ruling Means for Creators

On January 2, 2026, the Ninth Circuit issued a significant ruling in Sedlik v. Von D. The case involved photographer Jeff Sedlik, who owned a iconic portrait of Miles Davis. Tattoo artist Kat Von D used that photograph as a reference to create a tattoo on a client. She also posted the process on social media.

A jury found no infringement. But here is what makes the case a warning to creators:

The judges admitted the system is broken.

In two concurring opinions, the judges wrote that they would have found infringement, but their hands were tied by the Ninth Circuit's outdated "intrinsic test" for substantial similarity. They called the current test flawed and suggested abandoning it entirely.

Why this matters: The law is shifting. The "total concept and feel" standard that has protected many artists for decades is under fire. If the Ninth Circuit revisits this test, more uses that were once considered non-infringing may now be deemed illegal.

What this means for you: You cannot rely on what worked five years ago. Fair use is not static. Pellonia monitors every circuit split, every new ruling, and every shift in judicial philosophy. We do not guess, we analyze.

AI and Fair Use: The 2026 Split

The single largest fair use question of 2026: Can AI companies train on copyrighted data without permission?

In late 2025, Anthropic settled an AI copyright lawsuit for $1.5 billion, the largest copyright payment in history. That settlement sent shockwaves through Silicon Valley. It proved that using unlicensed, often pirated data to train models is not a risk-free bet.

But the legal question remains unresolved. Some courts view AI training as transformative, a new kind of statistical learning, not human expression. Others see it as mass-scale infringement that displaces creators.

As of early 2026, there is no national consensus. Different circuits are reaching different conclusions. That means your rights depend on where you file, and whether you have a legal team that understands the terrain.

Pellonia tracks these developments daily. When we help clients enforce their copyrights against AI scrapers, we do so with full knowledge of which arguments are winning and which are failing.

Common Fair Use Myths That Still Get Creators Sued

Myth 1: "I gave credit, so it's fair use."
False. Attribution is polite, but it is not a legal defense. You can credit the creator and still infringe.
Myth 2: "I'm not making money, so it's fair."
False. Noncommercial use is a favorable factor, but it does not automatically make your use fair. If you post an entire TV episode to a free platform, you are still infringing.
Myth 3: "I only used 10%."
False. There is no percentage safe harbor. Using 1% of a work can be infringement if that 1% is the core of the original.
Myth 4: "I said 'no infringement intended.'"
False. Disclaimers have no legal weight. They do not transform the use or negate the copying.
Myth 5: "It's on the internet, so it's free."
False. Copyright applies online exactly as it applies offline. Publication does not equal permission.

Pellonia regularly sees creators lose content, revenue, and legal battles because they believed these myths. We do not judge, we protect. But we also educate. Because prevention is always cheaper than litigation.

How to Determine If Your Use Is Fair

There is no checklist you can tick to guarantee fair use. But you can perform a good-faith analysis by asking:

Is my use transformative? Am I adding new expression or meaning?
What is the nature of the original work? Am I using factual material or highly creative expression?
How much am I using? Am I taking only what I need?
Does my use compete with the original? Could someone watch my video instead of paying for the original?

If you are unsure, and in 2026, even lawyers are often unsure, the safest path is to ask permission, license the work, or create your own.

And if you hold the copyright and believe someone is abusing fair use to steal your work, Pellonia helps you fight back.

When Fair Use Fails: What Are Your Options?

If you are the user and fair use is uncertain:

Seek a license from the copyright owner
Use public domain or openly licensed materials (Creative Commons, stock media)
Create original content

If you are the creator and someone has taken your work under a dubious fair use claim:

Send a DMCA takedown notice
Consult with legal counsel
If the use is commercial and directly competing, consider enforcement litigation

Pellonia does both. We help you secure your own permissions, and we help you remove unauthorized uses of your work, quickly, professionally, and without unnecessary escalation.

DIY vs. Pellonia: content protection at a glance

Feature/Approach	DIY (Do‑It‑Yourself)	Pellonia Specialized Services
Initial defense speed	Often reactive & uncertain	Proactive, 24/7 monitoring
Fair use analysis	Based on outdated myths	Based on 2026 case law & circuit splits
Legal accuracy	Prone to errors	Flawlessly documented submissions

Frequently Asked Questions (FAQ)

Q: Do I need to register my copyright to be protected?

A: No. Copyright exists from the moment of creation. However, registration is required to sue for infringement and to claim statutory damages. Pellonia can help you prioritize which works to register.

Q: Can I use a copyrighted image if I modify it?

A: Modification alone does not create fair use. You must add significant new expression, meaning, or message. Simple filters, cropping, or color changes rarely qualify.

Q: What happened in the Kat Von D case?

A: In January 2026, the Ninth Circuit upheld a jury verdict for Von D. But three judges wrote that the current test for substantial similarity is flawed and should be reconsidered. The case signals a potential tightening of copyright defenses.

Q: Does fair use apply outside the United States?

A: Fair use is a U.S. doctrine. Other countries have "fair dealing" or specific exceptions, which are generally narrower. If you operate globally, consult with counsel.

Copyright is automatic. Fair use is situational. And the distance between them is shrinking. In 2026, you cannot afford to guess. You cannot rely on what a YouTuber said in 2020. You cannot assume a judge will see things the way you do.

We are your IP protector, here to enforce your rights, defend your creativity, and help you navigate a legal landscape that changes every single day. Protect your work. Protect your future.

– Pellonia Blog, updated 2026

Copyright vs. Fair Use in 2026: Key Differences and Why You Need an IP Protector