What is Fair Use?

What is Fair Use?

What is Fair Use?

Fair use allows you to use limited portions of copyrighted material under some circumstances without first obtaining permission from a copyright owner or paying fees to a licensing agency. (The doctrine of Fair Use is codified in section 107 of the Copyright Law.) 

Fair use is used as a defense in court against claims of copyright infringement. However, it is also considered a right which serves as a safeguard of the First Amendment. Although ultimately only the courts can determine whether or not a use is a fair one, you can evaluate your situation according to the four factors of fair use listed below.

The four factors of fair use:

What is the purpose of your use? Is it non-commercial or for educational purposes, or is it for profit? Non-commercial and educational uses tend to be fair use, yet it would be considered an infringement for an instructor to scan an entire textbook to upload to Canvas because there are three other factors to consider. Not all for-profit uses are infringements, either.

  1. What is the nature of the copyrighted work you are using? Is it fact-based or highly creative? Has the work already been published? Unpublished and creative works, such as poetry, fiction, music and art are highly protected under U.S. copyright law. Fact-based writing, such as a description of a chemical reaction, may have what is called a “thin” copyright, whereas a creative, critical analysis may be more protected.
  2. How much of the copyrighted work are you using? This factor is referred to as the amount and substantiality. Using the smallest amount of a work in order to achieve your pedagogical intention is a best practice. However, even a small portion may be considered an infringement if that portion constitutes the “heart” of the work, depending of course, on the other three factors.
  3. To what extent does your use of the work affect the potential market for the work? Scanning an entire current textbook to upload to Canvas may be an educational use, but it directly affects the market for a work that was intended for that use. Is there an affordable, easy way to license your use of the work? How are you limiting access to the work, or are you making it available on the internet? 

There are tools that can help you think through fair use. You can evaluate an item with this Fair Use Checklist, created by lawyer-librarians Kenneth D. Crews and Dwayne K. Buttler. Keep a completed record for each item to serve as evidence of your good faith effort toward following the law. 

It is important to think in qualitative terms as the courts do. The four factors work together with some having more importance than others depending on the case. You cannot give the columns a numerical value and add them up. To get a real feel for how the courts think about fair use, it is most helpful to read over judicial decisions. One resource for these is the Stanford University Libraries Copyright Case Opinion Summaries. Another is the U.S. Copyright Office’s Fair Use Index. Although the latter source does not connect directly to the text of the case, you can identify relevant court cases there, read the summaries, then locate the full text of the case at https://law.justia.com/cases/.

Some examples of fair use in action include:

  • Sharing a news article with your students for class discussion

  • Including brief quotations in your book review
  • Satire which pokes fun at the news and the entertainment industry, among other things.

As part of the first factor, sometimes fair use can be transformative when a copyrighted work is used for a new purpose or a new meaning that extends beyond the intent or meaning of the original work. An example of this is the 2015 case in which the Authors Guild sued Google Books for scanning copyrighted printed materials without permission. The Second Circuit Court of Appeal upheld the District Court's ruling that Google did not violate the law because it does not allow readers access to the entirety of books still protected by copyright, only limited snippets. However, Google Books is transformative in that it allows people to use the search engine to search the full text of the content of books, something that cannot be done in print format. 

If you have questions about fair use, please contact Associate Professor Cindy Kristof, head of University Libraries’ Copyright & Scholarly Communication.