Copyright:Fair Use

An overview of copyright as it pertains to instructors and students

The Fair Use Test

The Fair Use principle is the biggest exception in copyright law. It is based on the belief that people should be able to use portions of copyrighted works for the purposes of commentary, criticism, and contributing to the public good. Unfortunately, the copyright holder and the end user may not always agree as to what constitutes a fair use. Therefore courts use four factors when evaluating fair use cases:

  1. The purpose and character of the use
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion taken
  4. The effect of the use upon the potential market

No one factor is enough to support a finding of fair use by itself. Fair use can be highly subjective, and judging whether the balance of the four factors is toward or against fair use can be difficult. When in doubt, consult an expert. Nonetheless, each of these four factors is discussed briefly in the box below.

The Four Factors

The first factor is the purpose and character of the use (not the work! That's the second factor).

There are two questions to ask when you think about the purpose and character of the use:

  1. Is the use transformative, or would you be using the work in its original form and for its original purpose? Criticism, commentary, and parody are all considered transformative uses, as is any use that adds context or value to the original. Transformation supports a finding of fair use.
  2. Is the use educational, non-profit, or personal, or is it commercial? A commercial use is less likely to be a fair use.

The second factor is the nature of the copyrighted work (not the use! That's the first factor).

There are two questions to ask here, too:

  1. Is the work factual (like an encyclopedia), or is it imaginative (like a novel)? The use of a factual work is more likely to be a fair use, since facts are not copyrightable.
  2. Is the work published or unpublished? The use of an unpublished work is less likely to be a fair use, since creators have the right of first publication.

The third factor is the amount and substantiality of the portion taken. Three questions here:

  1. How much of the work are you using? The use of a small percentage of the work (a few pages from a long book, for example) is more likely to be a fair use.
  2. Are you using the minimum amount of the work necessary to make your point? If not, you should be.
  3. Are you using the "heart" of the work? Not every work has a heart, but many do--the climax of a film or novel, or the main point of a book, for example. Using the heart of the work is less likely to be a fair use.

The fourth factor is the effect of the use on the potential market for the work. There are three questions to ask yourself here:

  1. If everyone used the work the way you propose to, would it keep people from buying the original? If the answer is yes, it's less likely to be a fair use. 
  2. Is it possible to get permission to use the work for a reasonable amount of money? If the original is out of print, you can't figure out who owns the copyright, or it's not possible to get a license for what you want to do, perhaps the answer is no. If, however, you could have easily gotten a reasonably priced license to use the work, it's less likely to be a fair use.

Best Practices for Fair Use

If you do decide to use a copyrighted work under Fair Use, it's recommended that you follow the best practices below:

  1. When you are trying to determine whether a use is fair or not, write down your case! (Or ask a librarian to make a written analysis for you.) This shows good faith in the unlikely event of a takedown notice or litigation as well as helping you analyze the case.
  2. If you are planning to use a copyrighted work for a long period of time (more than a semester), it's highly recommended that you get a license rather than depending on fair use.
  3. If possible, try to minimize the number of copies of the material created. This may take the form of verbal or written warnings and/or technological barriers to making copies.
  4. Be sure to provide attribution to the copyright holder--make sure their name and any publication information is on any copies! Again, this shows good faith in the unlikely event of a takedown notice or litigation.

Fair Use Reference Material