What is fair use?
Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. It is one of several limitations on the rights of copyright holders that allow uses of copyrighted work that would otherwise be infringing. If your use is fair, permission from the copyright holder is not required. In many cases, fair use allows copyrighted materials to be used for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.
How do you determine if your use qualifies as fair use?
In determining whether the use made of a work is a fair use, you must balance a set of four factors:
|Factor||How Factor Affects Use|
|1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes|
Educational uses are more likely to be fair use than commercial uses; however, not all educational uses are fair use.
|2. the nature of the copyrighted work|
The more factual the work is, the more likely the use is to be fair; conversely, the more creative or expressive it is, the less likely the use is to be fair. This factor can also weigh against use of unpublished works.
|3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole||Using a small part of a work is more likely to be fair use than using the entire work; however, if the small part is critical to the work, the use may not be fair.|
|4. the effect of the use upon the potential market for or value of the copyrighted work||Uses that are likely to impact the author’s ability to monetize the work are less likely to be fair use.|
Courts also examine whether the use is “transformative,” i.e., whether it uses the work in a new or unexpected manner. Transformational uses are more likely to be fair use.
We recommend using these handy checklists to guide your decision-making. It is also advised to maintain them for your records.
- Fair Use Checklist – Checklist created by Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville), and made available under a creative commons license.
A checklist will not, however, determine whether you will prevail in a fair use defense to an infringement lawsuit. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that 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. The decision can be difficult, and reasonable people (as well as the courts) will frequently reach different results on the same facts.
Why do this?
Section 504 of the Copyright Law contains language reducing liability for educators and librarians who make a reasonable and good faith effort to determine whether a particular use is fair. Your use of a checklist can help demonstrate this type of good faith effort if the author sues you for infringement.