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Copyright

Introduction

What is Fair Use?

In order to balance the interests of the creators of copyrighted works with the public's ability to benefit from those works, copyright law includes the exemption of fair use (§ 107), which allows limited use of copyrighted material without permission for purposes such as criticism, parody, news reporting, research and scholarship, and teaching.

There is no obvious demarcation line that separates fair use from non-fair use. Each event must be evaluated independently as to whether or not there is infringement of copyright law.

Fair use is technologically neutral; it applies to digital materials in the same way as to analog materials. 

Fair use allows many uses of copyrighted works for the purposes of teaching and research, but just because your use is for an educational purposes does not mean that you may copy or distribute a work without permission. Copyright law sets forth four factors to consider when determining whether a use is a fair. To rely on fair use, you will need to evaluate (and re-evaluate when needed) each of these factors in light of how you plan to use the work.

Please use the Fair Use Evaluation Tools on the left bar to help consider these factors. Document your analysis for each use case, and retain your records. Faculty are responsible for ensuring that their course materials comply with copyright law.

Image Credit: Lady Justice, by Scott*; Source: Flickr.com

Factor 1: Purpose & Character of Use

The First Factor: the purpose and character of the use

As a general matter, educational, nonprofit, and personal uses are favored as fair uses. Making a commercial use of a work typically weighs against fair use, but a commmercial use does not automatically defeat a fair use claim. "Transformative" uses are also favored as fair uses. A use is considered to be transformative when it results in in the creation of a new work, or uses the original work for a new and different purpose.

Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner—in favor of seeking permission. The uses in the middle, if they apply, are very beneficial: they add weight to the tipping force of uses on the left; they subtract weight from the tipping force of a use on the right.

Weighing in favor of fair use:

  • nonprofit
  • educational
  • personal

:

  • criticism
  • commentary
  • news reporting
  • parody
  • otherwise "transformative" use

Weighing against fair use:

  • commercial activity

Factor 2: Nature of Copyrighted Work

The Second Factor: the nature of the copyrighted work

The second fair use factor commonly looks to whether the work in question has been published, as well as whether it is a "highly creative work" versus being primarily factual. Uses of published works are more likely to be considered fair than are uses of unpublished works, because the law values the copyright holder's right to determine whether and how a work is first published. Highly creative works -- e.g.fiction, art, music, poetry, films -- also receive stronger protection than factual, non-fiction works. Additionally, uses workbooks or other "consumable" works that are sold to educational markets are generally disfavored.

Weighing in favor of fair use:
  • Published work
  • factual or nonfiction work

 

  • A mixture of fact and imaginative
Weighing against fair use:
  • Unpublished work
  • Imaginative/highly creative work (art, music, novels, films, plays, poetry, fiction)

Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission. But here, uses in the middle tend to have little effect on the balance.

tibetan sheet music

Image Credit: [Tibetan musical score], Wellcome Library, London. Creative Commons License Button

Factor 3: Amount and Substantiality

The Third Factor: the amount and substantiality of the portion used

The law does not set bright lines or absolute limits on how much of a work may be used to be considered fair use. Generally, the less of a work you use, the more likely it is that your use is fair. However, it is important to be aware that the "amount" factor considers not just the quantity of what you use, but also qualitatively assesses whether you have used the so-called "heart of the work." Even small portions may exceed fair use if the most notable or creative aspects of a work are used. While using an entire work is less favored under the amount factor, there are nevertheless many instances in which doing so will still qualify as fair use. If you have a legitimate need to use an entire work, e.g. an image that is being critiqued in a scholarly presentation, this may be appropriate and permissible as a fair use.

Weighing in favor of fair use:

  • small portion used
  • portion is not central or significant to the work as a whole
  • amount used is narrowly tailored to educational purpose, such as criticism, comment, research, or subject being taught

Weighing against fair use:

  • large or entire portion used
  • portion is central to the work or the "heart of the work"
  • amount used is more than necessary for criticism, comment, research, or subject being taught

This factor has its own peculiarities. The general rule holds true (uses on the left tip the balance in favor of fair use; uses on the right tip the balance in favor of asking for permission), but if the first factor weighed in favor of fair use, you can use more of a work than if it weighed in favor of seeking permission. A nonprofit use of a whole work will weigh somewhat against fair use. A commercial use of a whole work would weigh significantly against fair use.

For example, a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copyshop would need permission for the same copying. Similarly, commercial publishers have stringent limitations on the length of quotations, while a student writing a paper for a class assignment could reasonably expect to include lengthier quotes.

Which way does your balance tip after assessing the first three factors? The answer to this question will be important in the analysis of the fourth factor.

Factor 4: Effect Upon the Potential Market

The Fourth Factor: the effect of the use upon the potential market for or value of the copyrighted work

The fourth factor looks at whether or not there is some economic harm to the copyright holder as a result of your use. In evaluating this factor, it is important to consider not just whether your particular use has a negative impact, but also whether widespread use of the same type would have an effect on the work's potential market. Courts have established that licensing is part of the potential value of a copyrighted work, and so evaluating this factor may require an investigation into whether there is a reasonably available mechanism for licensing the work. If so, this weighs against relying on fair use.

Weighing in favor of fair use:

  • no significant effect on market or potential market for copyrighted work
  • use stimulates market for original work; no similar product marketed by copyright holder
  • no longer in print; licensing or permission unavailable
  • supplemental classroom reading
  • one or few copies made or distributed
  • user owns lawfully acquired or purchase copy of original work
  • restricted access to work (to students or other appropriate group)

Weighing against fair use:

  • significantly impairs market or potential market for copyrighted work or derivative
  • licensing or permission reasonably available
  • numerous copies made or distributed
  • repeated or long-term use that demonstrably affects the market for the work
  • required classroom reading
  • user does not own lawfully acquired or purchased copy of original work
  • unrestricted access on the web or other public forum

If a use is tipping the balance in favor of fair use after the first three factors, the fourth factor should not affect the results.