What Is Fair Use?
When Permission Is Not Required for Use of a Copyrighted Work…
You must normally obtain permission from the copyright owner to lawfully engage in any of these activities:
- Produce copies of a work
- Prepare derivative works based on an original work
- Distribute copies of a work
- Perform a work in public
- Display a work in public
However, there are certain “favored purposes” that support production of new knowledge through writing and/or teaching, which may be considered “fair use.” Fair use is an exception to the requirement to ask permission, and its application is treated on a case-by-case basis. Some of these “favored purposes” include:
- News Reporting
- Example: A film may be shown in a classroom as part of the curriculum (as long as specific criteria are met).
- Example: A researcher may make a single copy of a scholarly article for personal use.
How Can I Determine if My Intended Use of a Work Is “Fair”?
The Four Factors
Section 107 of the Copyright Law essentially says that a “fair use” is not an infringement of copyright. The Courts developed the four factors that must be weighed in making a decision concerning whether any particular use fits within the definition of fair use. Each use of a work should be preceded by a consideration of these four factors:
- The purpose and character of the use, including whether it is educational or commercial
- The nature of the copyrighted work
- The amount and substance of the portion used
- The effect of the use on the potential market for or value of the work
Each factor can be visualized as a continuum, on which a particular usage can be positioned as either more or less likely to be fair:
Image courtesy of the University of Minnesota Libraries Copyright Program (source).
The fair use doctrine was created with the idea of the “reasonable person” in mind. In other words, would a reasonable person, after reviewing these factors, believe a particular use of a copyrighted work to be fair? But because every case is different, there is no way to draw up a conclusive list of what is fair use and what is not. As the U.S. Copyright Office notes, “there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.”
- “Fair Use FAQs for Professors” (PDF) – from the Center for Social Media at American University, the Association of Research Libraries, and the Washington College of Law at American University
- “Fair Use FAQs for Students” (PDF) – from the Center for Social Media at American University, the Association of Research Libraries, and the Washington College of Law at American University
- “Can I Use That? Fair Use in Everyday Life” (PDF) – from the University of Minnesota Libraries
- Copyright and Fair Use – from the Stanford University Libraries
- “Reproduction of Copyrighted Works by Educators and Librarians” (Circular 21, PDF) – from the U.S. Copyright Office