Fair use is “the doctrine that brief excerpts of copyright material may… 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.” It is an exemption to copyright law.
It is intended to balance the interests of copyright holders with the public interest in the distribution and use of creative works. Many uses would not be legal without fair use, such as printing multiple copies of a work for classroom use or the use of quotes in articles.
What are examples of fair use?
Fair use is cited in such uses as course reserves, student projects, digitization, content in scholarly articles, access for disabled persons, parodies, quotes in news broadcasts, remixes, or video clips.
Use the Fair Use Evaluator to help determine if your use is fair or not.
Full text of fair use in Copyright Law:
§107 · Limitations on exclusive rights: Fair use
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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
References:
Common Examples of Fair Use CC BY 4.0
Fair Use by University of North Carolina at Chapel Hill CC BY 4.0
Circular 92: Copyright Law of the United States
Myths about Fair Use
There are many myths or misunderstandings about exactly what fair use covers, what the law states, or how it can be applied. Below are just a few of the most common myths about fair use.
Myth 1: All educational use is fair use.
Fact: While many educational uses are considered fair use, there are some activities that do not meet the fair use criteria. For example, a teacher can’t make copies of an entire text book so that students don’t have to buy it.
Myth 2: Every educational use is transformative.
Fact: Using copyrighted works for teaching can often be a transformative use, but not always. For example, using a text book created to teach Biology 101 to teach Biology 101 is not transformative.
Myth 3: All socially beneficial use is fair use.
Fact: Fair use is designed to help balance the rights of the creator and the social benefit of using copyrighted works in certain ways. Not all uses of copyrighted works that would be socially beneficial, however, qualify as fair use. For example, scanning and posting an entire medical text book online for anyone to access for free is socially beneficial but probably not fair use.
Myth 4: All commercial use precludes fair use.
Fact: Many commercial activities, such as newspapers and online news sites, rely heavily on fair use.
Myth 5: It is not possible to have a fair use when a permissions scheme exists for a work.
Fact: Just because rights holders are willing to charge you to use their copyrighted material, does not mean that fair use cannot apply. For example, the Associated Press created a licensing scheme to quote from AP stories but quoting from news stories has long been considered fair use.
Myth 6: Fair use specifies a percentage or amount of a work that is okay to use.
Fact: The law does not state that using 10% of a book or 30 seconds of a song or video clip is fair use. You can often use more than these arbitrary limits, while sometimes using even less might not be fair use. The amount of the original work used is only one of the four factors to consider.
Source: Common Examples of Fair Use CC BY 4.0
The Four-Factor Test
The Four-Factor test is the litmus test that a use must pass in order to be considered fair use. Fair use is a balance of the four factors, not a definitive checklist. These are the factors that judges and courts use to determine if a use is fair. You do not need to have an affirmative yes for each of the factors for your use to be fair; you need to weigh them against each other to determine if a use is fair.
Factor 1: Purpose and Character of the Use
Exactly how do you want to use the work? Educational uses are usually highly favored, but that does not mean all educational uses are automatically fair use.
Factor 2: Nature of the Work
Is the work factual or highly creative? Factual works are more easily defended as fair use, but highly creative works definitely qualify as well.
Factor 3: Amount and Substantiality Used
How much of the work do you need to serve your purpose? Using the entire work is not out of the question, but using only what is necessary is a better argument for fair use.
Note: any guidelines that say you can use X%, X chapters, etc. of a work are just that: guidelines. They're not legally enforceable and can provide false security as infringement is still possible when using such guidelines (some institutions may have policies that state specific numbers, though). You need to look at the quantity and value of the materials used in relation to the purpose: is it a reasonable amount in relation to the use?
Factor 4: Market Impact
Will your use of the work replace purchase of the work? Will your use have no impact on or increase the market of the work? This factor should not be a barrier to the need.
Click the tabs above for additional information and scenarios on each of the factors.
See additional information on fair use and public domain here.
Factor 1: Purpose of Work
The purpose and character of use, including whether the use is for commercial or noncommercial purposes;
In recent years a determination of whether a use is "transformative" has become an important part of many fair use analyses. A transformative use occurs when the work is used for a “broadly beneficial purpose different from that of the original.”
If you can arguably regard your usage of the content to transform the content, rather than merely reproducing it, you can more likely consider fair use. Transformative examples include making commentary or critique on the work; creating a new interpretation of the work; and revising to a parody of the work.
A noncommercial use of the work will also be considered more likely for fair use.
Scenario 1: Supplemental Content for Class
Professor Garcia teaches a survey course on American poetry with a focus on the 20th century. Most of the readings are drawn from the student's textbook, The Oxford Book of American Poetry (Oxford, 2006), but she wants to supplement the text with some additional material. To do this, she selects individual poems from a variety of poets, scans them, and posts them to the course reading section of the course's D2L Brightspace. One of the poems she wants students to read is the book-length The Book of Nightmares (Mariner, 1973) by Galway Kinnell, so she scans the 88-page book to PDF and uploads it to D2L Brightspace. Is this fair use?
Analysis
1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?
Yes, Professor Garcia's use is transformative. The original purpose of The Book of Nightmares is aesthetic. Professor Garcia is using the poem to instruct students in the themes, techniques, and development of modern American poetry. She places the work in question in the broader context of the other readings in the course, and we can presume that she will offer critical commentary about the poem and explain its significance within this framework.
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
Professor Garcia's use is transformative, and she is using the work for nonprofit educational purposes, both of which strongly favor fair use. Not favoring fair use, however, is the fact that the work is highly creative and that she reproduced it in its entirety. The book is still in print, thus the rightsholder could make a strong argument that the professor's use (and similar uses, were they to occur) damaged the market for the book. The fair use argument is helped by the fact that the book was placed in D2L Brightspace and access was limited to students enrolled in the course. The fact that students can download the file and potentially redistribute it, however, is a liability.
Fair use: Probably not
Scenario 2: Share Article with Other Institution
Diane works at NDSU. She finds Jack's article in an electronic journal and saves the full-text PDF to her computer. She knows her cousin would want to read it as well, but unfortunately, his university doesn't subscribe to this journal.
Analysis
The publisher may allow a limited amount of scholarly sharing, or the fair use exception may allow Diane to share the article for educational and scholarly purposes. However, Diane should avoid sharing copyrighted articles systematically and widely.
Fair use: Maybe
Scenario 3: Analyze Images
Professor Lee is teaching an online photography course. His colleague Professor Jones had showed him an image from the Associated Press of tourists in Red Square wearing face masks to protect themselves from the smog during the 2010 Russian wildfires. Professor Lee felt that this photograph was a particularly good example of image composition and depth of field. He decided to use the photo in his online lecture notes for the class, which he makes available on his personal website without access restrictions. In the text surrounding the image, Professor Lee clearly stated his purpose in displaying the image, explaining in detail how the image exemplifies the photographic concepts he is discussing. Is this fair use?
Analysis
1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?
Yes, Professor Lee's use is transformative. The original purpose of the photo was to illustrate how bad the air quality was in Moscow during the wildfires. Professor Lee's purpose for using the photo is to illustrate concepts and techniques in photography.
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
Because Professor Lee's use is transformative, and because it is necessary for him to use the entire image in order to illustrate the photographic techniques he is presenting, the material taken is appropriate in kind and amount, even though the image is a creative work.
Fair use: Yes.
Note: The fact that Professor Lee's lecture notes are freely available on his website does not in and of itself undermine his fair use argument. However, his use is more likely to be challenged by the rightsholder than if he had used a course management system to limit access to only the students in his class. Access restrictions are not a requirement of fair use, but they demonstrate a good faith intention to limit the use of the image to educational purposes.
Factor 2: Nature of Work
The nature of the copyrighted work;
Content that is fact-based can be easier to consider for fair use than content that is very creative in its essence. Facts are testable objects and thus can be valuable for consultation in a scholarly analysis. Creative and artistic work, like photographs or paintings, is more owner-identifiable and thus may be harder to claim for intentions of fair use.
Scenario 3 in Factor 1 shows an example of how an artistic work (a photograph) can be used under fair use.
Factor 3: Substantiality of the Portion Used
The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
Fair use consideration is judged in a primarily qualitative rather than quantitative method, so specific content limitations on the amount used is not precise. Generally, the less used the more likely it can be counted for fair use. Also, consider the portion amount in proportion to the total amount.
Tips and core concepts:
Scenario: Posted Chapter for Class
Professor Chen is teaching an online course titled Frontiers in Biotechnology. This week's topic concerns the use of genetic information in the context of personalized medicine. Professor Chen would like students to read this article:
Lyon, G. J. (2012). Personalized medicine: Bring clinical standards to human-genetics research. Nature 482: 300-301. doi:10.1038/482300a
Professor Chen downloads the article PDF and posts it to D2L Brightspace for students to read.
Is this fair use?
Analysis
Professor Chen does not need to rely on fair use in this case because the University has a site license to Nature online that allows the University to make the licensed content available to authorized users for the purposes of research, teaching, and private study. This includes the right to reproduce individual articles for distribution to students as course readings and to create hypertext links to the licensed content as long as access is restricted to authorized users. Authorized users are defined as faculty, staff, enrolled students, and walk-in users of the library.
Factor 4: Potential Market of the Work
The effect of the use upon the potential market for or value of the copyrighted work.
If the use of the content in your work will take away income from the original work’s format, it is less likely of consideration for fair use. A better situation would be if your work will either cause no effect on or will increase the potential market for that work.
Scenario: E-reserves Chapter for Class
Professor Kassabian is teaching an online course about global health. For a segment on pandemics, he would like the class to read a chapter from Spillover: Animal Infections and the Next Human Pandemic by David Quammen (Norton, 2012). He photocopied the chapter from his copy of the book and asked the library to scan the copy to PDF and place it on e-reserve. The scanned copy of the chapter includes the book's title and copyright information of the book, and the course syllabus provides a complete citation for the chapter.
Is this fair use?
Analysis
1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?
No, Professor Kassabian's use is not transformative, since he is using the chapter for the same reason as its original purpose—to convey information about the danger of potential pandemics.
2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
Even though Professor Kassabian's use is not transformative, he is using the material to instruct students at a nonprofit educational institution, a favored purpose for fair use. In addition, the chapter is a work of nonfiction and is factual in nature, which also favors fair use. Professor Kassabian's decision to use only one chapter of the work also favors fair use, as this is not likely to replace sales of the book, especially since the book was not marketed as a textbook. In fact, Professor Kassabian's use of the chapter might improve the market for the book if students decide to purchase copies in order to read further. The fair use argument is strengthened because the chapter was not placed on the open web but limited through the library's e-reserve system to registered borrowers and because the professor clearly acknowledged the source, copyright, and publisher.
Fair use: Yes.
For information on best practices for fair use, see the Center for Media and Social Impact.
Guides of note:
Code of Best practices in Fair Use for Open Educational Resources
Code of Best Practices in Fair Use for Scholarly Research in Communication
Code of Best Practice in Fair Use for the Visual Arts
Set of Principles for Fair Use in Journalism
Statement on the Fair Use of Images for Teaching, Research, and Study