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Copyright: Fair Use

What is Fair Use?

Section 107 of the U.S. Copyright Act of 1976 provides an exception to the rights of copyright holders. In essence, the public does not have to seek copyright permission from or submit payment to rights holder to use limited portions of their work when the material is used for educational, news reporting, research, criticism and commentary. To determine whether the use of work is considered fair, the statute outlines four criteria that need to be considered.

Fair use is contextual and cannot be defined by a clear set of rules.  Each case needs to be looked at individually.  After applying the fair use criteria, results usually fall on a spectrum between likely to be fair and unlikely to be fair.  Definitive answers are rare. 

Suggested Tool: The fair use checklist from Columbia University can be a useful tool to evaluate whether the use of a copyrighted source meets the fair use criteria. 

Overview of the Four Fair Use Criteria

Chart outlining the fair use criteria

1. Purpose and character of the proposed work  - How is the proposed work to be​ used? Educational or non-profit reasons are more likely to be considered fair than works created for commercial purposes. Also consider how the proposed use transforms the protected work. Is the copyrighted material being used in a different way?  Parodies are considered a transformation of an existing work.  A piece of art or a clip from a film, which was initially created for entertainment, can be transformed into an intellectual object if it is critically analyzed in an academic setting.

2. Nature of the copyrighted work - Factors to consider is the status of publication (published vs. unpublished) and the level of creativity of the work (nonfiction vs. fiction) of the existing work. Published works tend to be considered more fair to use than unpublished works. Factual works such as textbooks and academic articles tend to lean more towards fair use than the highly creative works such as novels, poetry or plays. 

3.  Amount and substantiality of the portion used - Two components make up this factor. The quantitative measurement is the amount of the work used. In general, using only what is needed and a small portion of the work are considered to be more fair than using the entire work.  From a qualitative perspective, consider whether the portion of the work used is considered the heart of the work.  

4. Effect of the use on the market - This factor consider the potential economic impact that the use of work would have on the rights holder.  Does the use of a work or portion of the work affect the ability for the copyright holder to make a sale?  

Source of Chart: Anne Applin, Head Librarian, Thomas Jefferson High School for Science & Technology.