Fair use is the flexible, dynamic exception to copyright law that serves to balance the rights of creators with the public interest in using copyrighted works to advance education, to comment and criticize, and to make new creative content. Its flexibility is often somewhat intimidating or frightening because, when considering fair use, it is very rare to know for certain that a use is fair. It's far easier to determine what is more or less likely to be fair.
It can also be frustrating that the law does not give any clear answers regarding specific amounts we can use to be sure that we are "safe." Fortunately, there are ways of understanding the purpose and function of fair use that can help you feel more confident about usage evaluation and to appreciate the flexibility of fair use.
The Fair Use Balancing Test
Once you have looked at all of the factors, you can assess if, taken as a whole, your use seems likely to be fair or likely to be unfair. No single factor is determinative; therefore, you could "strike out" in three categories but have the remaining category weigh so strongly in favor of fair use that, overall, your use is deemed fair.
This tool was designed by the American Library Association to help users better understand how to determine the "fairness" of a use under the U.S. Copyright Code. The tool will help you to collect, organize, and archive the information you might need to support a fair use evaluation by providing you with a time-stamped, PDF document for your records. This could prove valuable should you ever be asked by a copyright holder to provide your fair use evaluation and the data you used to support it.
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Fair use is determined by considering four factors. No one factor is determinative; rather, each factor must be considered and weighed. Usually, after considering each of the four factors and weighing how much each fact of your particular situation favors or disfavors fair use, you are left with an overall sense that your use is "probably fair" or "probably not fair." Really, only the courts can offer us definitive answers.
How will you use the work? Purposes that favor fair use include education, scholarship, research, news reporting, criticism, and commentary. Non-profit purposes also favor fair use. Commercial uses weigh against fair use.
It's important to note that educational context is different from educational purpose. If you create a class website or presentation and put an image on it primarily for decoration/visual interest, this is not the same as providing direct instruction.
Remember that copyright is designed to protect works of creative expression; the more highly creative the work you want to use is, the more fair use is weighed against. This is inherently subjective. Generally, a novel is likely to be more highly creative than a work of non-fiction, but there are no guarantees here. Unpublished works would also be less likely to qualify for a fair use than published works.
Everyone seems to want to see some bright line rule, specific percentage, or exact number of pages whose use will always be deemed fair. There is no such number. The goal of fair use is to make available a wide and unpredictable set of uses.
As a general rule, using less of a work is always more likely to be fair than using more. The smaller the portion used is in relation to the whole, the more likely the use is to be deemed fair. It is also true, however, that using an entire work can be as a fair use depending on the balancing test.
Another guiding principle: using only the portion of a work that is absolutely necessary in order to meet the educational or fair use you have in mind is more likely to be fair than using more than is necessary. Less is better! Use as little as possible!
The more the portion you want to use represents the "heart of the work," the less likely your use is to be fair. This can be very difficult to assess.
The most useful way to think about this factor is to ask if your use could substitute for the original in the marketplace. Would your use substitute for sales either to your students or to anyone else? A confusing piece here is the permissions market. A strong market exists in selling permissions to use content, especially things like book chapters and journal articles. So it can be easy to say "Oh, of course my student won't be subscribing to Professional Journal X, so copying an article certainly doesn't substitute in the market." But it would substitute for that secondary permissions market. At this time, there isn't any truly conclusive case law about the permissions market, but it does seem very likely that a viable permissions market for the material you want to use would weigh against fair use.
What about parody? What are the implications for taking an existing item under copyright and transforming it into something different? The answer is that it depends. When source work is used in new and unexpected ways, the use is more likely to be fair. Some people view "transformativeness" as a kind of "fifth" fair use factor, and others see it as a way of understanding the interplay between the four factors.
In a sense, we can view "transformation" as the goal of fair use. Fair use exists in order to give citizens the ability to take existing creative works and use them to create new knowledge, understanding, or art. We find, when evaluating fair use, that it is helpful to keep "transformativeness" in mind as we look at the picture that our four-factor analysis gives us.
Legal Disclaimer: The information provided in this guide is for general reference purposes only and should not be construed as legal advice of any kind. If you require advice in relation to any specific copyright issues, you should consult an appropriate legal professional about your particular situation.
This page was created using material from Portland Community College Library's page, Copyright Resources, and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License license.