Skip to Main Content
It looks like you're using Internet Explorer 11 or older. This website works best with modern browsers such as the latest versions of Chrome, Firefox, Safari, and Edge. If you continue with this browser, you may see unexpected results.

Copyright & Fair Use: Fair Use

What is Fair Use?

Fair use is a doctrine under copyright law that allows brief excerpts of copyright material, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder. However, the use of work under one of these purposes does not automatically qualify as fair use. An analysis weighing the four factors of fair use is necessary for each individual scenario.

Evaluating Fair Use: Four Factors

The following four factors come directly from the fair use provision, Section 107 of the U.S. Copyright Act and have been examined and developed in court rulings. I have included brief descriptions and examples to help explain them in terms of the university needs.

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

In general, educational, nonprofit, and personal uses are favored as fair use. The statute lists several purposes which are common in a university, such as criticism, comment, news reporting, teaching, scholarship, or research.

Examples:

In favor of fair use:

  • Showing a film during class for criticism or comment
  • Creating a parody of a work (transformative use)
  • Using a book as a prop during a stage performance (transformative use)

Against fair use:

  • Showing a film for a campus party
  • Adapting an existing work into a new medium (i.e. book to film or television to stage)
  • Reading from a book during a stage performance

ii. the nature of the copyrighted work;

In general, published works and factual, non-fiction works are more likely to qualify for fair use. Unpublished works tend to receive more copyright protection. Highly creative works are also very protected because the law seeks to protect the creators artistic efforts (e.g. poetry, art, fiction novels). This does not mean that this items can not be used.

Examples:

In favor of fair use:

  • A documentary film on Buckingham Palace
  • A poster outlining the structure of DNA
  • A book explaining the economic ramifications of the Civil War

Against fair use:

  • A performance of Arthur Miller's The Crucible
  • A display of Richard Avedon's photographs
  • The showing of a newly released film

 

iii. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The law does not give an exact limit to how much of a work can be used. The amount is usually evaluated relative to the length of the entire original. Even small portions may exceed fair use if the part used it the "heart of the work" or the most notable part of the work. Using the entire work most often does not follow fair use, but in some instances it can. If you legitimately need to use a whole image for critique in a scholarly presentation this could be fair use. Remember: Less is best

Examples:

In favor of fair use:

  • posting a 30 second film clip online for students to view
  • Distributing a chapter of a text for class discussion
  • Displaying an entire painting for commentary during a presentation

Against fair use:

  • Posting an entire film online for students to view
  • Distributing digital or print copies of an entire text for class discussion
  • Playing an entire album during a presentation on a subject that has nothing to do with music

iv. the effect of the use upon the potential market for or value of the copyrighted work

Will the use result in economic harm to the creator or copyright owner? Basically, this means that if you could have realistically purchased or licensed the item, that fact weighs against fair use. Courts have established that licensing is part of the potential value of a copyrighted work. However, use of the works that are considered "out of commerce," like an out-of-print book, is more likely to be considered fair use.

Examples:

In favor of fair use:

  • Distributing copies of a large portion of an out-of-print book for class discussion
  • Posting a journal article on a password-protected course website for supplemental reading
  • Showing a film that is no longer in distribution

Against fair use:

  • Distributing copies of a large portion of a required text book for class discussion
  • Posting a journal article on your personal website or blog for supplemental reading
  • Showing a film that is currently in distribution and available for licensing

Fair Use Checklist

Introduction to the Fair Use Checklist 

The Fair Use Checklist and variations have been widely used for many years to help educators, librarians, lawyers, and many other users of copyrighted work determine whether their activities are within the limits of fair use under U.S. copyright law (section 107 of the U.S. Copyright Act). The four factors form the structure of this checklist. Congress and courts have offered some insights into the specific meaning of the factors, and those interpretations are reflected in the details of the checklist. 

Benefits of the Checklist 

A proper use of this checklist should serve two purposes. First, it should help you to focus on factual circumstances that are important in your evaluation of fair use. The meaning and scope of fair use depends on the particular facts of a given situation, and changing one of more facts may alter the analysis. Second, the checklist can provide an important mechanism to document your decision-making process. Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes on your project. Keep completed checklists on file for future reference. 

The Checklist as a Roadmap 

As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns. Some checked boxes will favor fair use and other may oppose fair use. A key issue is whether you are acting responsibly in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use. This is not an exercise in simply checking and counting boxes. Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use. Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make decisions.  

Caveat 

This checklist is provided as a tool to assist you when undertaking fair use analysis. The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair. Each factor should be given careful consideration in analyzing any specific use. There is no magic formula; an arithmetic approach to the application of the four factors should not be used. Depending on the specific facts of the case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.

 

88x31ccby The Checklist and this introduction is licensed by a Creative Commons Attribution License with attribution to the original creators of the checklist Kenneth D. Crews and Dwayne K. Buttler.

Fair Use Soup

Kevin Smith of Duke University likens the Fair Use Analysis to making SOUP.

An experienced chef has a list of ingredients for his soup, but the addition of each ingredient is instinctual. A little bit of salt. Too much? Add some more broth for balance. See if it tastes right. The goal in weighing the four factors of fair use is to make sure all your circumstances (ingredients) blend together to taste like fair use. You do not have to use all the four factors to make a fair use soup, as long as it tastes like fair use! 

alphabet soup

CC0: Public Domain 

Fair(y) Use

Want to Reuse this Content?

 This content is under a Creative Commons License that requires attribution to Texas Wesleyan University.