- Fair use is a set of broad criteria identified in Section 107 of the Copyright Act of 1976 that allows individuals to use limited portions of a work in the name of criticism, teaching, scholarly research, and news reporting without first having to obtain permission from the work’s copyright holder.
- Consideration of all four factors of fair use is required before proceeding with use, though all factors do not have to be in favor of use to make it a fair use.
- All four factors have equal weight; however, please pay attention to the last factor, effect on the potential market.
- What is the purpose of the use? If the purpose of the use is non-profit and/or educational in nature, the use is more likely to be protected under the doctrine of fair use than if the intention is to use the material in a for-profit manner.
Please note that educational use alone is not sufficient to constitute fair use.
There is also allowance made for a transformative use of material. Fair use permits the transforming of an original work to give it new expression or meaning. One common example of this is using original content in a parody.
- What is the nature of the copyrighted work? The concept of fair use favors works considered factual in nature (i.e. created for the purpose of criticism, commentary, teaching, or scholarship) over works that are original fictional or artistic expressions. Also, since copyright law grants an author the right to first publication, greater accommodation is given when using published versus unpublished works.
Copying material intended to be purchased (e.g. chapters from a textbook or an instructional module) is not protected under the idea of fair use.
- What is the amount or substantiality of the item used? While the doctrine does not define a set amount or percentage of a work that can be used and still be considered fair use, as a rule of thumb the smaller the amount of the work you use the more protected you are. For example, using ten pages of a 300-page book is more likely to be considered fair use than using ten pages of a 60-page book.
Regarding substantiality, even using a very limited portion of a work may not be allowed if that portion is what is referred to as the ‘heart of a work.’ In a fictional work, this might be a key or climactic plot scene; in a non-fictional work it may be a few pages that summarize the argument of the entire text, for example.
- What effect will the use have on the potential market for the work? Copyright law grants an author the right to realize financial gain from the creation and sale of his work. If usage of the material negatively impacts the author’s ability to realize revenue, it will not be protected under the doctrine of fair use.
Please remember that the concept of fair use is very general and that there are no concrete measures as to what is fair use and what is not. Fair use is open to interpretation and dependent upon the individual circumstances, and the individual seeking to use a copyrighted work must weigh all four factors and arrive at the conclusion that his usage is a reasonable and fair usage of the material before proceeding.
This checklist will provide you with a record of your decision-making process. It is recommended that the completed checklist be retained as evidence of your fair use analysis. It should be noted that 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.