LibGuides: Copyright and Fair Use: Fair Use

Fair use, or the use of another's copyrighted work by reproduction or other means for purposes such as teaching, parody, criticique, comment, news reporting, or research, is not an infringement of copyright. However, fair use does come with limits. Section 107 of the Copyright Act lists four factors to consider when trying to determine whether use of copyrighted content constitutes fair use:

The purpose or character of the use

Is the use for non-profit education or commercial purposes? Courts usually favor the former as fair use, but there have been cases where educational uses have not met the criteria for fair use and cases where commercial purposes have.

Also consider whether the use can be considered as transformative. Has the original work been transformed by adding new expression, meaning, information, insights, or value?

The nature of the copyrighted work

Factual works are more likely to be suitable for fair use than fictional ones (because facts are objective, cannot be copyrighted, and are often beneficial to the public, whereas courts are protective of creative works). In addition, published works are usually more suitable for fair use than unpublished ones (because the author has the right to control the first appearance of the work). Use of commercial works created specifically for the educational market is usually not deemed fair use, because such use goes against the works' intended purpose.

The amount used

The larger the amount used in proportion to the whole, the less likely a court will be to find it fair use. However, even uses of a small portion can be deemed not to be fair use, if that portion comprises the "heart of the work".

The effect on the potential market or value

If the use diminishes the value or market for the copyrighted work and/or the copyright holder is likely to face an economic loss they would otherwise receive, the use is not likely to be found fair..

Fair Use Tools

ALA Fair Use Evaluator The American Library Association has created this tool to help evaluate whether a use of a copyrighted work is likely to meet fair use guidelines. It provides a time-stamped PDF that can be used to show a reasonable attempt at determining the use was fair if legal action should ever arise related to it.
Digital Copyright Slider The American Library Association has created this slider tool to help determine whether a work is under copyright and thus subject to fair use restrictions or if extra permissions would likely be needed to use the work.
Copyright Crash Course on the Fair Use of Copyrighted Materials The University of Texas' Copyright Crash Course provides a clear explanation of what is and isn't fair use of copyrighted materials, especially when it comes to transformative uses of a work and educational or research copies.
Thinking Through Fair Use The University Libraries at the University of Minnesota have an interactive tool to help people discern whether a specific use of copyrighted material would be considered Fair Use. This tool allows a person to think through her answers and create documentation that can be saved (actually sent to the person via email).
Know Your Copy Rights: Using Copyrighted Works in Your Teaching This two-part FAQ helps educators navigate common usage questions that arise in teaching and research, to help them determine whether an intended use is likely to fall under fair use guidelines. It covers questions related to both traditional classroom teaching and online education.
Seeking permission to use a work that doesn't fall under fair use The Copyright Advisory Office of Columbia University has created this page to teach researchers how to obtain permission from the copyright owner if the researcher's intended use would not fall under fair use.

What If I Acknowledge the Copyright Owner?

Bear in mind that acknowledging the copyright owner and citing the original work does not automatically make a use fair. Similarly, attaching a disclaimer that a new use is not associated with or approved by the original copyright owner does not absolve one of copyright infringement. It will still be necessary to conduct a fair use analysis and, if the new use does not meet the fair use guidelines (or another legal exception), to seek permission from the copyright owner.