Wondering whether you can share or duplicate a text, audio or video recording, or other type of copyrighted material? Fair use gives you the right to use copyrighted material without needing to seek permission or make payment, in certain circumstances. Whether Fair Use applies to your use will depend on several factors, described in this section of this guide.
In this video, find out what “fair use” is and how it applies when you are looking to use a copyright-protected work.
What is fair use?
Fair use is an exception to the rights of copyright owners, which may allow free use of those materials under certain circumstances. This includes criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. Fair use balances the needs of the public with those of copyright owners and preserves the copyright's purpose to promote "science and the useful arts." When institutions and individuals act reasonably and in good faith when evaluating whether their intended uses are fair, the law limits their liability if the use is later found to be infringing.
How do I determine whether fair use applies?
Congress included guidance on fair use in Section 107 of the 1976 Copyright Act, specifying four factors for judges to consider when analyzing a case. A determination on fair use may be made after balancing these four factors:
1.The purpose and character of use:
The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. In addition, the statute explicitly lists several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship, or research. These activities are also common and important at the university. But 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 that are not merely reproductions. Fair use is more likely to be found when the copyrighted work is “transformed” into something new or of new utility or meaning, such as quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original.
2. The nature of the copyrighted work:
This factor centers on the work being used, and the law allows for a wider or narrower scope of fair use, depending on the characteristics or attributes of the work. For example, the unpublished “nature” of a work, such as private correspondence or a manuscript, can weigh against a finding of fair use. The courts reason that copyright owners should have the right to determine the circumstances of “first publication.” 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. Additionally, courts tend to give greater protection to creative works; consequently, 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.
3. The amount and substantiality of the portion used:
Although the law does not set exact quantity limits, generally the more you use, the less likely you are within fair use. 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. However, 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. Similarly, 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.” On the other hand, 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. On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.” Such a version of an image might adequately serve educational or research purposes.
4. The effect of the use on the potential market for or value of the work:
Effect on the market is perhaps more complicated than the other three factors. 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. To evaluate this factor, you may need to make a simple investigation of the market to determine if the work is reasonably available for purchase or licensing. 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.” 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 make direct inroads on the potential markets for those works.
The above section is licensed by a Creative Commons Attribution License with attribution to its author Dr. Kenneth D. Crews
In recent years, judges have turned decisively to the framework of "transformativeness" when evaluating fair use cases. Two key analytical questions have emerged from the case law as core guiding principles for fair use reasoning:
1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value of the original?
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
"These two questions effectively collapse the 'four factors.' The first addresses the first two factors, and the second rephrases the third factor. Both key questions touch on the so-called 'fourth factor,' whether the use will cause excessive economic harm to the copyright owner. If the answers to these questions are 'yes,' a court is likely to find a use fair—even if the work is used in its entirety."
Source: Association of Research Libraries, Code of Best Practices in Fair Use for Academic and Research Libraries (2012), p.8.
This page is intended to share general guidelines and best practices related to copyright. The staff of Lipscomb Library cannot provide legal advice and are not responsible for the content of third party sites, which are provided in this guide for your convenience. If you need legal advice, you should contact an intellectual property attorney.
