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.
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Disclaimer
The information presented in this guide is intended for informational purposes only and should not be construed as legal advice.
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:
- Purpose and character of your use. In what way are you using the work?
- Nature of the copyrighted work. Is the work you are using fiction or nonfiction? Published or unpublished?
- 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?
- 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 in your 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.
| 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 |
Fair Use Evaluator
All potential uses must undergo the four-factor analysis because copyright law does not define what is or is not fair use. Though there is always a degree of ambiguity in any analysis, judicial decisions concerning fair use can be used to define examples that may be considered to generally weigh for or against fair use.
Though no tool can equivocally determine fair use, Fair Use Evaluator from the ALA Office for Information Technology Policy can help you weigh the four factors as well as provide documentation of your analysis.
