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Consider: is the work published or unpublished?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