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Copyright Information Center: Fair Use

What is Fair Use

Fair use is a doctrine under copyright law that permits certain uses of a work without the copyright holder’s permission.  The fair use of a copyrighted work is an exception to the exclusive rights of a copyright holder. Fair use may be made of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.  However, the use of a work for one of these purpose does not automatically qualify as a fair use. There are no hard and fast rules when deciding whether or not use of copyrighted material can be considered fair use. A nuanced analysis weighing four factors must be done for each intended use of copyrighted material.

It is also important to note that fair use is a defense. Your determination that a use is fair does not prevent a copyright holder from taking legal action against you. The only definitive way to determine whether your fair use analysis was correct is in a court of law. Therefore making fair use determinations also involves your level of risk averseness.

Best Practices in Fair Use

Codes of best practice in fair use have been developed by various communities of practice to outline common practices they regard as fair use when using copyrighted materials. These codes of best practice are not legal documents and following them does not guarantee that a copyright holder will not take legal action against you. However, following these best practices will give you a stronger fair use defense should your use be questioned. The following is a list of codes of best practice that are particularly relevant to the academic community. Additional codes of best practice may be found on the Center for Media and Social Impact website.

U.S. Copyright Office Fair Use Index

The Four Factors of Fair Use

Fair use is a flexible balancing test that is difficult to define apart from the specific factual circumstances in which it has been applied by courts. 

Explanation of Each Factor:

Purpose and character of the use
Consider: is the use educational or commercial? Is it a non-profit use or a use for profit? Is the use transformative or iterative?

  • Educational use does not automatically render a use fair; this is just one helpful factor.  For example, note that many materials are created specifically for the educational market and fair use cannot be relied upon to make these works “free.”
  • Many recent cases have centered on whether the use is transformative or iterative, with transformative use more likely to be considered fair. Transformative uses include such use of portions of a work in parodies or thumbnail images that reproduce a full–sized image but for a different purpose, such as a search engine.
  • Many educational uses are iterative in that they require the use of exact copies, which is usually less defensible than the use of limited portions of a work for a new purpose or in a new way.
  • The more transformative a use is, the less likely it is to negatively affect the market for the original work, the fourth fair use factor.

Nature of the copyrighted work
Consider: is the work published or unpublished? Is it factual or creative?

  • Unpublished works generally receive greater protection because the courts consider the copyright holder’s right to first publication.  The fact that a work is unpublished does not bar a finding of fair use, but it makes the other factors more important.
  • The more creative a work is, the stronger the copyright.  Purely factual data such as phone numbers do not receive copyright protection, but the selection and arrangement of factual data with some modicum of originality may.

Amount and substantiality of the use
Consider: how much of the work are you using?  How important is the portion you are using to the work as a whole?

  • Using a smaller portion of a work is more likely to qualify as a fair use, though there are no rigid page number or percentage guidelines in the statute.
  • This factor is analyzed qualitatively as well as quantitatively: a small amount of the work may be too much if it reproduces “the heart of the work.”

Impact on the market
Consider: how many copies are being made and how widely will they be distributed? Is the use spontaneous or is it repeated? Is the original for sale or license?

  • A use for which there is a clear market or licensing mechanism is less likely to be fair than the use of a work for which there is no market or clear potential market.
  • Making numerous copies of a work weighs against a fair use finding; digital reproduction exacerbates this factor because digital copies are easier to copy and disseminate widely.
  •  The Supreme Court has stated that this factor is the most important, and the analysis of some of the other factors often lead to a market analysis.

Fair Use for Faculty

In the teaching context, it may be useful to take the following steps to help qualify a use as fair and protect yourself and your university from infringement liability:

  • When using third party material, perform a fair use analysis in good faith;
  • Copy as little of the material as you can and still make the use you need;
  • In an on-line setting, first check to see if the library has a license to the material; you may be able to point students to the material in an accessible database;
  • Consider placing material in a password-protected environment that is available only to those enrolled in the class and terminate the students’ access to the material when class is over;
  • Link to the material instead of copying it whenever possible;   
  • If the use cannot be considered fair, ask the copyright holder for permission to use it.

Fair Use Decision Tools

Introduction to the Checklist: The Fair Use Checklist and variations on it have been widely used for many years to help educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act).  Fair use is determined by a balanced application of four factors set forth in the statute and listed on this guide.  Those factors form the structure of this checklist.  Congress and courts have offered some insights into the specific meaning of the factors, and those interpretations are reflected in the details of this form.

Benefits of the Checklist: A proper use of this checklist should serve two purposes.  First, it should help you to focus on factual circumstances that are important in your evaluation of fair use.  The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis.  Second, the checklist can provide an important mechanism to document your decision-making process.  Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project.  Keep completed checklists on file for future reference.

The Checklist as Roadmap: As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns.  Some checked boxes will favor fair use and others may oppose fair use.  A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use.  This is not an exercise in simply checking and counting boxes.  Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use.  Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.

*Fair Use Checklist and Introduction to the Fair Use Checklist borrowed and adapted from the checklist created by Kenneth D. Crews (Columbia University) and Dwayne K. Butler (University of Louisville).