What Is Fair Use?
When Permission Is Required for Use of a Copyrighted Work
For works published after 1927 in the United States, you must normally obtain permission from the copyright owner to lawfully engage in any of these activities:
- Make copies, print or digital, of a work
- Prepare derivative works based on an original work
- Distribute copies of a work, including in controlled environments like Canvas
- 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 obtain permission. While there is no litmus test for fair use, and its application is treated on a case-by-case basis, these “favored purposes” include:
- News Reporting
- Example: A film may be shown in a classroom during class as part of the curriculum (as long as specific criteria are met).
- Example: A researcher may copy a scholarly article for their personal use.
How Can I Determine if My Intended Use of a Work Is “Fair”?
The Four Factors
Section 107 of United States Copyright Law essentially says that a “fair use” is not an infringement of copyright. So what is a “fair use” of someone else’s work?
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.”
U.S. Courts have developed 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 all four factors. For example, educational use by itself is not “fair use” unless the other factors are also considered.
- What is the purpose of your use? Is it non-profit/educational, or more commercial?
- The nature of the copyrighted work? Is it more creative, or more factual?
- How much and how substantive is your use? The more substantive, the less fair, for example it is less fair if your use contains “the heart” of the work, or would stand on its own in an anthology.
- 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?
- “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