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Copyright for Faculty: Fair Use

Fair Use

"There are no legal rules permitting the use of specific number of words counts, a certain number of musical notes, or percentages of a work. Whether a particular use qualifies as fair use depends on all the circumstances." (Answer to Frequently Asked Question #47, U.S. Copyright Office Web page.)

The purpose of the fair use doctrine is to allow limited use of copyrighted material without requiring prior permission from the copyright holder. The statute lists four factors to be weighed when analyzing the proposed use in order to determine whether it is a fair one. Although consideration of all factors is required, all do not have to be in favor of a use to make it a fair one.

A fair use analysis is driven by facts and relies on your good-faith effort to make a reasoned conclusion. Reasonable individuals may come to different conclusions concerning the same set of facts, but the operative word is "reasonable." If you have made a rational and reasonable determination, you are less likely to be targeted for an infringement lawsuit.

Also see the section on Codes of Best Practice for the application of fair use within particular disciplines.

Four Factors

In determining whether the use made of a work in any particular case is a fair use the factors to be considered include:

  1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
    Note that educational use alone does not automatically result in a finding of fair use, just as a commercial use is not always an infringing one. And remember, the other three factors must also be considered. This factor is also more likely to weigh in favor of fair use if your use is transformative. Recent court decisions have emphasized that when a use is substantially transformative, the other factors are less significant. The test for a transformative use: "does the use merely supercede the objects of the original creation or instead add something new, with a further purpose of different character, altering the first with new expression, meaning, or message." Blanch v. Koons, 467 F.3d 244 (2d Circ. 2006)
  2. The nature of the copyrighted work; 
    This factor generally weighs in favor of fair use if the work to be used is factual in nature (scholarly, technical, scientific) rather than works involving more creative expression such as plays, poems, fictional works, photographs, paintings and such. The case for fair use becomes even stronger when there are only a few ways to express the ideas or facts contained in a factual work. The line between unprotected "facts and ideas" and protected "expression" is often difficult to draw. If there is only one way or very few ways to express a fact or an idea, the expression is said to have merged into the fact/idea, and there is no copyright protection for the expression.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
    The larger the amount you use, the less likely it will be a fair use. The copyright statute itself does not give numbers or percentages, allowing each situation to be judged on its specific facts. Included here is a consideration of the quality of the portion used as well as the quantity. Sometimes, even if only a small amount is taken, this factor weighs against fair use if the portion can be justly characterized as 'the heart of the matter.'
  4. The effect of the use upon the potential market for or value of the copyrighted work. 
    If the proposed use would negatively impact the market for or value of the copyrighted work, the fourth factor weighs against a finding of fair use. Although effect on the market is often cited as the most important of the four, the factors all interrelate and must be evaluated together. This factor and the third factor, portion used, work in tandem. The more taken in amount and substantiality, the greater the negative impact on the market for the copyrighted work.