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What is Fair Use?

Introduction

The doctrine of fair use in U.S. copyright law can help you use copyrighted materials for your education and research needs.

The exclusive rights of copyright owners are subject to limitations. These limitations are outlined in Sections 107 through 118 of the Copyright Law of the United States.

One of the more important limitations to the rights of copyright owners is the doctrine of “fair use,” which is codified in section 107 of the copyright law. Under the doctrine of fair use, you may use copyrighted works under certain circumstances without the use being considered an infringement on the rights of copyright owners.

Uses that may be considered fair include

  • Criticism
  • Comment
  • News reporting
  • Teaching
  • Scholarship
  • Research

However, these uses in and of themselves don't automatically qualify as fair. There are additional points to consider when determining fair use. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

The four factors of fair use

Section 107 of U.S. Copyright Law provides four factors to consider when considering whether the use of copyrighted works is fair use.

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work (e.g., whether it is factual or creative in nature)
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Factor 1: Purpose and character of the use

Nonprofit, educational use vs. commercial use

Simply stated, the U.S. Copyright Act favors nonprofit, educational uses of works as fair ones. Commercial uses are less favored, but this doesn't mean that you can't make a fair use defense for using a work for profit.

Transformative uses

Kenneth Crews, author of Copyright Law for Librarians and Educators, states that U.S. courts favor uses of copyrighted materials that are "transformative" in nature--that is to say, that the use of the copyrighted work results in an altered, transformed new work (p. 60). A transformative work has a new purpose or use or appears in a new context.

Some examples of transformative uses of copyrighted materials might include the following:

  • A parody of a song or novel
  • An artwork that includes text from another work, such as a poem
  • Quotations from an interview used as captions for another work, such as photographs or paintings
  • Using photographs in a collage
  • Internet memes and gifs
  • And many more

Factor 2: Nature of the copyrighted work

Fact over fiction

Uses of works that are factual or non-fiction in nature are more likely to be considered fair ones. As copyright expert Kenneth Crews states in Copyright Law for Librarians and Educators, the reason for this is because "a central purpose of copyright law, including fair use, is to allow for the growth of knowledge" (p. 62). To accomplish this goal, Crews states, "We regularly need to use and build upon earlier works . . . [and] most often, these efforts depend on using the nonfiction works of earlier scholarship" (p. 62).

The use of creative works--fiction, art, photography, music, and films, etc.--are less likely to be viewed as fair. However, that doesn't mean that you can't use them for purposes such as commentary, criticism, reporting, etc. Rather, the bar is set higher for the use of creative works. As with all fair use analyses, you should consider all four factors when determining whether your use is a fair one.

Consumables

Despite fair use favoring factual works, there are times when the use of copyrighted factual works weighs against fair use. Consider "consumable" materials--works such as workbook exercises and tests (among others) that are designed to be used (consumed by the user), then repurchased.

Such as use might not be considered a fair one, in part because of the nature of the work but also because of the use's effect on the market for the work. 

Factor 3: Amount and substantiality of the portion used

How much is too much?

It's not possible to give a specific amount of content that a copyrighted work can be used for a use to still be considered fair--although some publishers, libraries, and copyright owners have tried over time as a way to define (and limit) fair use.

Some fair use guidelines do recommend specific amounts that are allowed--so many words, so many lines, 10 percent or less, etc. It must said that the less the amount used, the more likely the use is a fair one. Nevertheless, no specific amount or percentage appears in U.S. law.

As the U.S. Copyright Office’s factsheet on “Fair Use” notes,

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The heart of the matter

While quantity should figure into a fair use analysis of a work, so should quality: It's important to pay attention to what you're using, not just how much. Is what you're hoping to use the "heart of the work," the main point, the "big reveal" that eliminates the need for anyone else to consult the work?

A famous example of using the heart of a work in a way that was determined not to be a fair one is the "Harper & Row" case, decided by the U.S. Supreme Court in 1985. The magazine The Nation reviewed the memoir of President Gerald Ford and quoted in particular from the part of the book in which Ford described why he pardoned his predecessor, Richard Nixon, for crimes he might have committed against the U.S. while president.

The Supreme Court noted that while the amount quoted was small overall, it represented for a potential reader some of the most interesting parts of the book. The passages quoted revealed key information that might negate the need for someone to read the book (published by Harper & Row).

Factor 4: The effect on the potential market or value of the copyrighted work

The most important factor?

Writing in Copyright Law for Librarians and Educators, copyright specialist Kenneth Crews notes that some U.S. courts have stated that the effect on the marketplace is the most important of the four factors  (p. 64).

Nevertheless, U.S. courts haven't been consistent in this judgment. For example, generally, you cannot make money off of the copyrighted works of others without asking their permission. Yet you can make the case for fair use of copyrighted materials for commercial purposes.

The point is that users of copyrighted works need to analyze how their intended use impacts all four factors, not just one. Sometimes a fair use of a work (for commentary, criticism, reporting, etc.) can actually boost the market for a work. Sometimes reusing a portion of a copyrighted work in a new, transformative way can be a fair use.

Balancing risks

Making a fair use defense of copyright works involves a certain amount of judging risk and balancing the need for and use of a work against such risks.

Understanding the concept of fair use and how to analyze use using the four factors with regard to copyrighted works will help you reduce risk. Like most things in life, the more you practice using the four factors in analyzing fair uses of works, the better you'll become at it, the more comfortable you'll become with it, and the more likely you are to use good judgment.

The benefits of fair use

Fair use benefits scholars, students, and the general public in many ways. Under fair use, portions of copyrighted works can be reused, cited, critiqued, reprinted, quoted, transformed, versioned, mashed up, memed, remixed, and more.

Fair use fundamentally facilitates information sharing and knowledge creation because it allows others--scholars, students, the public--to use copyrighted works under certain conditions and limits the monopoly that a copyright owner could potentially hold over a work.

Help with determining fair use

Evaluating whether a use is fair or not is not a simple matter. Thankfully, there are resources and tools to help you.

Keep in mind that these resources provide guidance to help you determine what may be fair use of a copyrighted work. They do not provide a guarantee that your use is a fair one. Only an expert in intellectual and copyright law may be able to make that final determination.

Here are a few online tools to help you make a decision about fair use:

Some myths about fair use

This short video from the Stanford (University) Center for Internet & Society discusses some common myths about fair use and copyright.

Contact us

You can also get help from the ULS Office of Scholarly Communication and Publishing--just fill out this online contact form or send us an e-mail. We cannot provide you with legal advice, but we can offer guidance in understanding and interpreting the four factors of fair use. 

If we can't answer your question, then we can contact the Office of General Counsel on your behalf so that you can get the university's perspective on your fair use concern.

Further reading

Butler, Rebecca P. Copyright for Academic Librarians and Professionals. Chicago: ALA Editions, 2014.

Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code.

Crews, Kenneth D. Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions. 3rd ed. Chicago: ALA Editions, 2012.

Smith, Kevin L. Owning and Using Scholarship: An IP Handbook for Teachers and Researchers. Chicago: Association of College & Research Libraries, 2014.

U.S. Copyright Office. Copyright Basics (Circular 1). Washington, DC: Library of Congress.

U.S. Copyright Office. Fair Use (Factsheet; FL 102). Washington, DC: Library of Congress.