Copyright: Fair Use - 4 Factors

Using Other's Materials

Protecting Your Copyright

Fair Use

Understanding the concept of fair use and when it applies may help ensure your compliance with copyright law. Once you understand the concept, there are some helpful tools to assist you in applying Fair Use to your situation.

Fair use is a uniquely U.S. concept, created by judges and enshrined in the law - section 107 of the United States Code. Fair use recognizes that certain types of use of other people's copyright protected works do not require the copyright holder's authorization. In these instances, it is presumed the use is minimal enough that it does not interfere with the copyright holder's exclusive rights to reproduce and otherwise reuse the work.

Fair use is primarily designed to allow the use of the copyright protected work for:

However, fair use is not an exception to copyright compliance so much as it is a "legal defense." That is, if you use a copyright protected work and the copyright owner claims copyright infringement, you may be able to assert a defense of fair use, which you would then have to prove.

Four Factors

Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered "fair use."

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit, educational purposes.

   If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.

2. The nature of the copyrighted work.

   Use of a purely factual work or work that is already published is more likely to be considered fair use than use of someone's creative work or work that is still unpublished.

3. The amount and substantiality of the portion used in relation to the copyright protected work as a whole.

   There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of, or so important to, the original overall work as to be beyond the scope of fair use.

4. The effect of the use on the potential market for or value of the copyright protected work.

   This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.

   At one extreme, simple reproduction of a work (i.e., photocopying) is commonly licensed by copyright holders, and therefore photocopying in a business environment is not likely to be considered fair use.

   At the other extreme, true parody is more likely to be considered fair use because it is unlikely that the original copyright holder would create a parody of his or her own work.

While the factors above are helpful guides, they do not clearly identify uses that are or are not fair use. Fair use is not a straightforward concept, therefore the fair use analysis must be conducted on a case-by-case basis.

Understanding the scope of fair use and becoming familiar with those situations where it applies and those where it does not can help protect you and your organization from unauthorized use of copyright material.

Examples of Fair Use include:

• Quotation of excerpts in a review or criticism for purposes of illustration or comment.
• Quotation of short passages in a scholarly or technical work for illustration or clarification of the author's observations.
• Reproduction of material for classroom use where the reproduction was unexpected and spontaneous–for example, where an article in the morning's paper is directly relevant to that day's class topic.
• Use in a parody of short portions of the work itself.
• A summary of an address or article, which may include quotations of short passages of the copyrighted work.

For further help in determing whether your own classroom use qualifies as fair use, consult the resource below:

Code of Best Practices in Fair Use for Academic and Research Libraries - see Principle 1 on page 13-14

Some have heard of the so-called "first use rule" which is a practice that originates from pages 6-8 in the Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals. It is not actually law but is often treated this way through general practice.

For legal protection reasons, it is recommended that for every item you use under the fair use clause of the Copyright Act that you complete a checklist and keep it on file for three years following the last date of use of the item.

There are often situations in an educational institution that are very similar to each other regarding their copyright status. This is helpful in determining what to be aware of in a given set of circumstances and can help clarify whether the intended use of material is fair use.

• Specific Uses for Teaching guidelines from the University of Minnesota