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Copyright: Fair Use

A guide to understanding copyright laws and applications in the classroom and research.

About Fair Use

"Fair Use" is a concept that emerges from the  exceptions and possible uses of a work that are not protected by copyright law.  Fair Use allows you to use a copyrighted work for purposes not reserved by the copyright holder.  Fair use is not a law itself and the scope of what constitutes fair use can change by judicial review.

NOTE:  What constitutes fair use can only be resolved in a federal court.  Fair Use a not a blanket exemption to using Copyrighted Works in all circumstances.  However Fair Use is very powerful tool in education and should be used when applicable.

You can search relevant court cases at the U.S. Copyright Office Fair Use Index.

When deciding if the use of a work constitutes a Fair Use, the court evaluates four criteria:

Click on the above links to learn more about what factors constitute Fair Use.

Evaluating these criteria is known as a  Fair use Analysis.  You can evaluate your own use of a work using the same criteria to determine is your use of a work is probably a Fair Use.  You an use the Checklist Document in the column to the lower left.

Make sure to include the Copyright Disclaimer for Fair Use in works that you use.

Fair Use Checklist

Use this checklist to evaluate your use of a work to determine if is likely constitutes a "Fair Use."

If the majority of factors tend towards fair use then you can feel confident using it.

Fair Use Case Search

Search for Court cases relating to Fair use at the U. S. Copyright office, Fair Use Index.

Copyright Disclaimer

Right-click on the image below and save it.  You can print it out and place it on items that you scan or otherwise as needed.

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The purpose and character of the use

When evaluating the first criterion the purpose of the work can weigh in favor of fair use if you are using copyrighted material for:

  • Instruction
  • Research
  • Criticism
  • Commentary
  • Other scholarship
  • Non-commercial purpose

     In addition to any (non)commercial motive for using a work, determining in favor of fair use is also influenced by the whether or not the use is transformative.  Transformative means its use changes the purpose or character of the original work.   In this way a parody is considered transformative, but a film adaptation of a book is not transformative.

     In Campbell v. Acuff-Rose Music, Inc.  the U. S. Supreme Court found that a parody of a song was protected by fair use because it was transformative, meaning it fundamentally changed the purpose of the original work,  even though the parody was commercial.

    Factors weighing against Fair Use include:

  • For entertainment
  • Exact or verbatim copy of the original
  • For profit

The nature of the copyrighted work

Because disseminating factual information benefits the public, you have more latitude to use copyrighted factual works such as biographies than you do from fictional works like novels.

Additionally, authors have the right to control the first public appearance of their (unpublished) works, so using material from already published sources weighs in favor of fair use

When evaluating the second criterion the nature of the work can weigh in favor of fair use if it is:

  • Factual (e.g. a non-artistic photograph of a politician)
  • From an already published work, (e.g. a newspaper)

Factors weighing against Fair Use in the second criterion include if the work is:

  • Creative, (e.g. a portrait photograph of a famous person)
  • Consumable , (e.g.  a course workbook or test book)
  • An unpublished work , (e.g. a personal diary)

The amount and substantiality of the portion used

When evaluating the amount of a work, courts evaluate both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. 

Furthermore there is the substance of the work or the "heart" of the work.  This is a subjective criterion, but the general idea is that if you take the most characteristic elements of a work, even if very it's brief (e.g.  "ET phone home") this could result in infringement.

When evaluating the third criterion the amount of the work copied can weigh in favor of fair use if it is:

  • Relatively small amount (e.g. approximately 10%  [i.e. one book chapter] of the work or less)
  • Not central to entire work (i.e. the most characteristic or climactic elements of a work)

Factors weighing against Fair Use under the third criterion include if the work is:

  • A large portion or entirety of a work,
  • Portion used is central to the work

Value of the copyrighted work

The final criterion evaluated by courts is the impact that the use of copyrighted materials has on the market value of those resources to the rights-holder.  If a use deprives the copyright holder of lawful compensation or undermines potential market values then the copyright holder could use the infringer for damages. 

When evaluating the fourth criterion the value of the work copied can weigh in favor of fair use if it has:

  • No significant effect on the market or potential,
  • One or few copies made and/or distributed,
  • No longer in print; absence of licensing,
  • Restricted access (limited to students in a class or other appropriate group),
  • One-time use, spontaneous use (no time to obtain permission)

Factors weighing against Fair Use under the fourth criterion include if the work is:

  • Cumulative effect of copying would be to market for the copyrighted work substitute for purchase of the copyrighted work,
  • Numerous copies made and/or distributed unless you have a well defined purpose for it,
  • Reasonably available licensing mechanism mechanism for obtaining permission to use the copyrighted work currently available e.g. CCC licensing or off-prints available,
  • Will be making it publicly available on in a class or other appropriate group) the Web or using other means of broad dissemination,
  • Repeated or long-term use obtain permission).
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