Scholarly Communications

What Is Fair Use?

 

Fair use is a right outlined in title 17, section 107, U.S. Code, that allows for the reproduction of copyright materials without permission from the copyright holder in certain circumstances. Section 107 outlines a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

The Four Factors

Whether or not you are within the boundaries of fair use depends on the facts of your particular situation. To determine whether you are within fair use, the law calls for a balanced application of these four factors:

  1. The purpose and character of the use (e.g., use is commercial in nature or for nonprofit educational purpose);
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

These four factors come directly from the fair use provision, Section 107 of the U.S. Copyright Act, and they have been examined and developed in court rulings. The following summaries explain the significance of the factors as they relate to many university needs.

Factor 1: The Purpose and Character of the Use

  • Nonprofit educational purposes are generally favored over commercial uses.
  • Several purposes especially appropriate for fair use are criticism, comment, news reporting, teaching, scholarship, or research.
    • Be careful: Not all nonprofit educational uses are “fair.” A finding of fair use depends on an application of all four factors, not merely the purpose. However, limiting your purpose to some of these activities will be an important part of claiming fair use.
  • Courts also favor uses that are “transformative,” or transformed into something new or of new utility, and are not merely reproductions. For example:
    • Quotations incorporated into a paper, pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original.

Factor 2: The Nature of the Copyrighted Work

  • The law allows for a wider or narrower scope of fair use, depending on the characteristics or attributes of the work. The courts reason that copyright owners should have the right to determine the circumstances of “first publication”. For example:
    • The unpublished “nature” of a work, such as private correspondence or a manuscript, can weigh against a finding of fair use.
    • Use of a work that is commercially available specifically for the educational market is generally disfavored and is unlikely to be considered a fair use.
    • Courts tend to give greater protection to creative works. For example:
      • Fair use applies more broadly to nonfiction, rather than fiction.
      • Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works.

Factor 3: The Amount or Substantiality of the Portion Used

  • Generally, the more you use the less likely you are within fair use.
    • Be careful: The law does not set exact quantity limits. The “amount” used is usually evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective.
    • Be careful: Sometimes the exact “original” is not always obvious. A book chapter might be a relatively small portion of the book, but the same content might be published elsewhere as an article or essay and be considered the entire work in that context.
  • The “amount” of a work is also measured in qualitative terms. Courts have ruled that even uses of small amounts may be excessive if they take the “heart of the work.” For example:
    • A short clip from a motion picture may usually be acceptable, but not if it encompasses the most extraordinary or creative elements of the film.
    • It might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “scoop.”
    • In some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose.
    • Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount,” and this may not be a fair use.
    • Although, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount” and might adequately serve educational or research purposes.

Factor 4: The Effect of the Use on the Potential Market For or Value of the Work

  • Fundamentally, this factor means that if you could have realistically purchased or licensed the copyrighted work, that fact weighs against a finding of fair use.
  • You may need to make a simple investigation of the market to determine if the work is reasonably available for purchase or licensing. For example:
    • A work may be reasonably available if you are using a large portion of a book that is for sale at a typical market price.
  • “Effect” is also closely linked to “purpose.” For example:
    • If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect may be easier to prove.
    • Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can have a significant impact on potential markets.

Remember: Fair Use is a Balancing Test

  • To determine whether a use is or is not a fair use, always keep in mind that you need to apply all four factors. This flexible approach to fair use is critical in order for the law to adapt to changing technologies and to meet innovative needs of higher education.
  • Not all factors need to weigh either for or against fair use, but, overall, the factors will usually lean one direction or the other.
  • The relative importance of the factors is not always the same. Your analysis should guide you to a conclusion.

Tools to Help Determine Fair Use:

  • Fair Use Checklist
  • Copyright Flowcharts from Portland State University
  • Fair Use Evaluator from the ALA office of IT Policy
  • Teaching & Copyright — A Guide from Utah State University

Adapted and used under a Creative Commons BY-NC license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.

This web site presents information about copyright law. The University Libraries make every effort to assure the accuracy of this information but do not offer it as counsel or legal advice. Consult an attorney for advice concerning your specific situation.

Most Recent Revision: October 2, 2013

Page last modified October 21, 2013