Copyright and Fair Use

Additional Resources

Disclaimer

The purpose of this guide is informational only and should not be construed as legal advice. It is designed to provide basic, general information about copyright.  This guide does not constitute or supply legal advice nor is it intended to replace the advice of legal counsel. The links to third party sites in this guide are provided for your convenience only.  If you have specific legal questions pertaining to copyright, please seek legal counsel.  

What is Fair Use?

Remember that copyright primarily exists to promote the discovery and communication of new ideas.  In order to balance the interests of the creators of copyrighted works with the benefit of sharing these works with the public, copyright law includes a Fair Use Exemption.  

From Section 107 of the Copyright Act:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

The fair use exception permits the reproduction of a portion of a copyrighted work without the copyright owner's permission, under certain circumstances.  This is a vitally important exception for education, as it enables students, scholars, and critics to use and reference copyrighted works in their own scholarship, teaching, and critiques.

However, just because a use is educational does not mean that it automatically qualifies as fair use. Copyright law sets forth four factors, all of which must be considered when determining whether a use falls under fair use. 

---

The Four Factors of Fair Use

Four factors are considered in determining whether or not a particular use is fair or not. No single factor dictates whether a particular use is fair use.  All four factors must be considered in making a determination.

1. What is the purpose of the use?

Fair use favors any use that is nonprofit, educational or personal, especially if it is for teaching, research, scholarship, criticism, commentary, or news reporting.  Fair use does not favor uses that are commercial, for profit, or for entertainment purposes. It is important to remember that not all educational uses are fair use. Transformative uses that transform or modify the original purpose of the work and contribute new intellectual value to the original work are often considered fair use.  

Weighing in favor of fair use:

• Showing a film during class for the purpose of criticism and comment
• Creating a parody of an existing work - transformative
• Using a book as a prop in a stage performance - transformative

Weighing against fair use:

• Showing a film on campus for a party or other social gathering
• Adapting an existing work to a new medium, such from book to film or television to stage
• Reading from a book during the course of a stage performance

2. What is the nature of the work?

Since authors should have final say over when and how their works are published, fair use tends to favor published works over unpublished works. In addition, factual works are more likely to be considered available for fair use than creative works such as art, music, novels, films, and plays.

Weighing in favor of fair use:

• A documentary film on the migration of Canadian geese
• A poster outlining the structure of amino acids
• A book explaining the economic ramifications of the Civil War

Weighing against fair use:

• A performance of Arthur Miller's The Crucible
• A display of Ansel Adams's photographs
• A showing of the latest Blockbuster film

3. How much of the work will you use?

Using a small amount generally favors fair use, whereas using a large amount weighs more against fair use. However, even a small amount of a work can be too much if it can be considered the heart of the work.

Weighing in favor of fair use: 

• Posting a 30-second clip of a film online for students to critique
• Distributing a chapter of a text for class discussion
• Displaying an entire painting for the purposes of commentary during a presentation

Weighing against fair use: 

• Posting an entire film online for students to view
• Distributing copies (print or digital) of an entire text for class discussion
• Playing audio of an entire symphony performance during a presentation on a subject completely unrelated to music

4. What effect will the use have on the market or potential market value of the work?

Does the use deprive the copyright owner of income or undermine a new or potential market? If so, the use does not favor fair use.

Weighing in favor of fair use:

• Distributing copies of significant portions 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  

Weighing against fair use:

• Distributing copies of significant portions of a required textbook for class discussion
• Posting a journal article on the open web for supplemental reading
• Showing a film that is currently in distribution and available for licensing

REMEMBER: All four factors must be considered together - no one factor can stand alone!