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last updated: 8/14/2013

Fair Use

Fair Use is but one of the limitations and exceptions outlined in the Copyright Law, but it is probably one of the most important.  Fair Use is defined in Section 107 of the US Copyright Law, the full text of which has been copied here:

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The preamble lists some examples of uses typically covered as fair use ("criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,").  This list is neither complete nor exclusive. Keep in mind fair use is a flexible ad hoc rule, and there is no exhaustive list of fair uses. Rather than create a list, the fair use statute contains four minimum factors to consider.

The Four Fair Use Factors

In order to determine if something falls under a "fair use" the four factors must be applied.  All four factors are equally important, so you cannot look at the purpose and say because your use is educational that it is automatically a fair use.  You need to balance all four factors.  As Kenneth Crews states, " This flexible approach to fair use is critical in order for the law to adapt to changing technologies and to meet innovative needs of higher education. Not all factors need to weigh either for or against fair use, but overall the factors will usually lean one direction or the other."

The first factor - "purpose and character of the use" - distinguishes between commercial and nonprofit educational uses. Commercial use means only that the use earns a profit; a use that is both educational & earns a profit (e.g. the news) is considered a commercial use. Nonprofit educational uses are more likely to be fair uses, but that is not always the case. Some commercial uses have been permitted under fair use, although a commercial use is less likely to be a fair use. This first factor also considers whether the use is "transformative." A use is transformative when it adds something new to underlying work with "a different purpose or different character, altering the first with new expression, meaning or message." The more transformative a use is, the more likely it will qualify as fair use.

The second factor is "the nature of the copyrighted work." This factor assumes more access should be granted to certain works than others. For example, factual works – scientific, biographical, or historical – are more likely to be covered by fair use than creative works, such as entertaining movies or music. If a published work in unavailable or out of print, fair use is broader. If the work was never published, fair use is more narrow. "Consumables," such as a workbook or test, are particularly vulnerable to harm from copying, and fair use narrows accordingly. 

The third factor, "amount . . . used in relation to the copyrighted work as a whole" considers the proportion of the creative work used in relation to the proportion required to satisfy a specific fair use purpose.  The law does not define the amount of a work used considered to be fair.  Generally, the more you use the less likely a use would be deemed fair.  However, a full copy does not disqualify a use from being considered a fair use, particularly when the new use serves a different function than the original.  One other consideration here is whether the portion used is the "heart of the work."  If the central, distinctive portion of the work has been used, fair use will narrow.  Again, no firm rule is given here. 

The last factor is "the effect of the use on the potential market". The relevant effect is the potential harm to the market, not the actual harm. Would similar uses, if widespread, substantially weaken potential demand for the work? If so, fair use may not cover the intended use.

These four factors are not the only factors that should be considered. Other factors may warrant evaluation. The intentions of the actor, whether they were acting in "good faith" or not, and standard industry practices are good examples of other factors to consider.

For help in deciding whether your use is a fair use or not, please see the Fair Use Checklist.

last updated: 8/14/2013