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Fair Use

Fair Use refers to the copying of copyrighted material, without the permission of the copyright owner, typically done for the purposes of criticism, news reporting, teaching, scholarship or research, and parody. Users claiming fair use of copyrighted material must be prepared to defend their use if challenged by the copyright owner. There are no precise rules for determining whether a use is fair. Copyright law provides guidance only by way of the four factors for which a use is judged. The other factor that may affect a fair use determination is whether the use is considered to be transformative.

Fair use and the guidelines summarized below do not preempt or supersede licenses, terms of agreement, and contractual obligations.

Fair Use Factors and Evaluation Tools

The following tools are designed to help you make a fair use evaluation to determine whether portions of copyrighted works may be used without permission. Do this analysis each time you need to determine whether your proposed use of a work is fair.

Note:  Section 504 (c)(2) of the Copyright Act of 1976 offers legal protection to educators and librarians who have used copyrighted material based upon a good-faith analysis of the fair use factors.

Fair Use Tools

The Four Factors

Fair Use Checklist
The checklist, based on the four factors outlined in the fair use provision of copyright law, is designed to help you make a fair use determination, and provide you with a permanent record of your decision-making process.

Fair Use Evaluator Tool
Learn more about fair use and determine the "fairness" of a use.

Thinking Through Fair Use
Checkboxes and a five-point fairness scale designed to help make better fair use decisions. Includes the option to email a copy of your decision for permanent recordkeeping.
 

Transformative Factor

The transformative nature of  a work refers to those uses which create something new and unique, going beyond simply making a duplicate or copy of the original.

Examples of transformative works:

  • Scholarly criticism or commentary using quotations from or excerpts of the original work
  • Parody -- a form of ridicule through comedic imitation or interpretation
  • Some works of art, where the use does not diminish the value of the original work, but goes so far as to create a new aesthetic or express a new point of view. An example would be Andy Warhol's Campbell Soup paintings.
The Four Factors
Many provisions of the 1976 copyright law affect educational uses of copyrighted materials but the most generally applicable is Section 107 - Limitations on Exclusive Rights: Fair Use. Under the law, it is fair use to reproduce copyrighted materials for purposes of criticism, comment, news reporting, teaching, scholarship, or research. Four criteria will be applied in judging whether or not there has been an infringement:
 
  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
Generally a nonprofit, educational use will be favored over a commercial use.
  • the nature of the copyrighted work;
If the work is primarily factual in nature it is more likely to be considered fair use, as opposed to creative or expressive works such as plays, poems, fictional works, photographs, paintings, etc.
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
Typically, the smaller the portion you use, the more likely you are within fair use. Substantiality refers to the quality or importance of the portion used.
  • the effect of the use upon the potential market for or value of the copyrighted work.
If the proposed use is likely to significantly affect the market for or value of the copyrighted work, in lieu of purchasing or licensing a work, this factor would weigh against fair use.

 

 
General Guidelines for Students and Instructors

These are general guidelines that many educators have agreed upon and follow with regard to the copying of analog and digital content and the creation of multimedia objects or presentations. These guidelines can assist you in determining what may be permissable under fair use, with the warning that these are simply guidelines and have not been adopted as law.

For more information see: Fair Use Guidelines for Educational Multimedia (1996)

 

Recommended Portions

It is important to keep in mind that, in general, fair use does not give permission for copying works in their entirety. Limited portions of legally acquired material may be incorporated into a new production by a student for a class project or by an instructor for purposes of criticism, comment, news reporting, teaching, scholarship, or research.
 

  • A photograph or illustration may be used in its entirety but no more than 5 images by an artist or photographer
  • For photographs and illustrations from a published collective work, not more than 10% or 15 images, whichever is less
  • Up to 10% or 3 minutes, whichever is less, in the aggregate of a copyrighted motion media work
  • Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work (or in the aggregate of extracts from an individual work), whether the musical work is embodied in copies, or audio or audiovisual works
  • Any alterations to a musical work shall not change the basic melody or the fundamental character of the work
  • Up to 10% or 1000 words, whichever is less, in the aggregate of a copyrighted work consisting of text material
  • An entire poem of less than 250 words may be used, but no more than three poems by one poet, or five poems by different poets from any anthology may be used
  • For poems of greater length, 250 words may be used but no more than three excerpts by a poet, or five excerpts by different poets from a single anthology may be used
  • Up to 10% or 2500 fields or cell entries in a data set, whichever is less
  • A field entry is defined as a specific item of information, such as a name or Social Security number, in a record of a database file
  • A cell entry is defined as the intersection where a row and a column meet on a spreadsheet
Copies, Retention & Distribution
  • Only two copies of an educational multimedia project may be made, only one of which may be placed on reserve.
  • If an educational multimedia project is created by two or more people, each creator may retain one copy for the educational purpose for which it was created.
  • An additional archival copy may be made for preservation purposes, to be used only to replace the original if it has been lost, stolen or damaged.
  • Instructors may use their multimedia works for teaching courses for up to two years after the first use.
  • Permission is required for any commercial use, or any uses that go beyond the proposed guidelines for educational use.
Attribution & Acknowledgement

It is always advisable to credit the sources and display the copyright notice and copyright ownership information for all works used in academic projects, including those prepared under fair use. When seeking permission to use copyrighted work the copyright owner may stipulate how the permitted work should be cited. Use of an acknowledgement or citation may be considered in a fair use determination, but it does not offer protection against an infringement claim.