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Determining Fair Use

Section 107 of the Copyright Act lists four factors to help you determine types of content usage that may be considered fair use. No one factor alone dictates whether a particular use is indeed fair use. Consideration of all four factors is needed to help determine whether or not copyright permission is required.

Before applying these factors to your situation, identify if the use is for criticism, comment, news reporting, education, scholarship or research. If the answer is no, obtain copyright permission to use the content. If the answer is yes, examine the four factors listed below.

  1. The purpose and character of the use, including whether it is for commercial use or for nonprofit, educational purposes.
    In evaluating the purpose and character of the use, courts favor non-profit educational uses over commercial ones. However, there are instances in which commercial uses would qualify as fair use and other instances where educational uses would not meet the criteria.Courts also favor productive uses that yield a “transformational” result. Thus, extensive quoting from a work to produce a critical analysis of that work is favored over “slavish copying” that merely reproduces a copyrighted work.
  2. The nature of the copyrighted work.
    This factor focuses on the work itself. The legislative history states that there is a definite difference between reproducing a short news note and reproducing a full musical score because of the nature of the work. Moreover, some works, such as standardized tests and workbooks, will never qualify for fair use because by their nature they are meant to be consumed. Uses of factual works such as scientific articles are more likely to fall within fair use.
  3. The amount and substantiality of the portion used in relation to the copyright-protected work as a whole.
    This factor considers how much of the copyrighted work was used in comparison to the original work as a whole. Generally, the larger the amount used, the less likely a court will find the use to be a fair use. Amount and substantiality is also a qualitative test; that is, even though one takes only a small portion of a work, it still may be too much if what is taken is the “heart of the work.”Click here for a legal example of “the heart of the work.”
  4. The effect of the use on the potential market for or value of the copyright-protected work.
    Courts use this factor to determine whether the use of a work is likely to result in an economic loss that the copyright holder is otherwise entitled to receive. It looks at whether the nature of the use competes with or diminishes the potential market for the use that the owner is already exploiting or can reasonably be expected soon to exploit. Even if the immediate loss is not substantial, courts have found that, should the loss become great if the practice were to become widespread, then this factor favors the copyright holder.

While these four factors are helpful guides, they do not clearly identify uses that are or are not fair use. Fair use is not a straightforward concept; therefore, any fair use analysis must be conducted on a case-by-case basis considering all four factors and the circumstances of the situation at hand.

Examples of fair use:

  • Quotation of short passages in a scholarly or technical work for illustration or clarification of the author’s observations.
  • Spontaneous and unexpected reproduction of material for classroom use–for example, where an article in the morning’s paper is directly relevant to that day’s class topic.
  • A parody that includes short portions of a work.
  • A summary of an address or article, which may include quotations of short passages of the copyright-protected work.

Understanding the scope of fair use—and becoming familiar with those situations where it is more likely to apply and those where it is less likely to—can help guard you and your institution from an infringement claim due to the unauthorized use of copyright-protected materials.

Copyright Compliance Policies often provide faculty, staff, students and others with guidelines for fair use, although there will always be exceptions, such as the exceptions for libraries and archives, exceptions for the use of materials in an educational setting and the guidelines for classroom copying.