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J. Robert Van Pelt and John and Ruanne Opie Library

Copyright

An information guide to U.S. Copyright Law as it applies to the academic environment.

Fair Use

Fair use (section 107, U.S.C. Title 17) allows for the use of copyrighted material without permission from the copyright holder for purposes including, but not exclusive to: criticism, parody, news reporting, research, scholarship, and teaching.  The "fairness" of a proposed use is determined by the application and consideration of four factors. 

The four fair use factors are:

  1. Purpose and character of your use.  In what way are you using the work?
  2. Nature of the copyrighted work.   Is the work you are using fiction or nonfiction?  Published or unpublished?
  3. Amount or significance of the portion used in relation to the copyrighted work as a whole.  How much of the work are you using?  Is it the "heart" of the work?
  4. Effect of your use upon the potential market for the copyrighted work.  Is your use eliminating the need for the purchase of the original?

All four factors must be applied on a case-by-case basis.  However, all four factors do not necessarily need to lean in favor of fair use in order for a proposed use to be deemed "fair."  Some factors may be more significant than others depending on your proposed use.

What about "educational fair use?" While many educational uses favor fair use, you still need to evaluate your use each time you are reproducing, distributing or displaying copyrighted material whether to show in your class, to hand out copies, to post on Canvas or to include in your own scholarly work.

 

Weighing Fair Use

Because copyright law does not define what is or is not a fair use, there is always a degree of ambiguity in any analysis. While all potential uses must undergo the four factor analysis, judicial decisions concerning fair use can be used to define examples within the four factors that may be considered to generally weigh for or against fair use.  

Weighing Fair Use
Factor Favors Fair Use Disfavors Fair Use
Purpose educational entertainment
  not-for-profit profit generating
  transformative duplicative
Nature factual creative
  published unpublished
  permanency consumables (workbooks, e.g.)
Amount proportional to need unnecessarily substantial amount or entire work
Effect no rival market for the original impairs market or potential market for the original

 

Transformative Use

While no use is always "fair," some uses are looked upon more favorably by the congress and the courts than others.  A transformative use of a work - using an existing work for a new purpose or in an unexpected way - has weighed in favor of fair use in many court cases decided in recent decades.  Even highly commercial uses have been judged "fair" by the U.S. Supreme Court, demonstrating the "weight" of a transformative use.

Fair Use Tool

No tool can determine fair use, but using a fair use checklist or analysis tool such as one of the following can help you weigh the four factors as well as provide documentation of your analysis.

Fair Use Evaluator - ALA Office for Information Technology Policy