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Fair Use Analysis

Fair use is an exception to copyright law that allows someone to use a work without getting permission from the copyright holder. Fair use can be used for criticism, comment, news reporting, teaching, scholarship, and research.

Four Factors

A court will look at and weigh four factors when determining if a particular use of a work qualifies as fair use. Those four factors are:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for or value of the copyrighted work

Each use is unique and considered on the merits of that use. While patterns have emerged over the years, there is no sure way to know what a court will decide about a particular use. However, there are some guiding principles we can rely on.

Purpose and character:

There are several favored uses based on the statute:

  • Criticism
  • Comment
  • News Reporting
  • Teaching
  • Scholarship
  • Research

A key question to ask is if the use is productive (used in an activity) or transformative (used in the creation of a new work). An example of a productive use could be teaching. An example of a transformative use could be a parody. Transformative uses are highly favored for fair use.

As faculty at a university, much of your use is likely to fall under teaching, but it’s important to understand this is just one factor in the balance, it is not a full exception. There are limits to teaching uses.

Nature of the Copyrighted Work

In general, the more creative the work, the more likely it is to be protected. Fair use is more likely to be found when it relates to a factual work. Unpublished works are strongly protected against fair use.

Amount and Substantiality of the Portion Used

Quantity used, alone, is not determinative. Sometimes using even a small portion of the work will be restricted while using a large portion may be allowed. You should consider the following:

  • Did you use only the necessary portion, or did you go beyond that?
  • Were there other options to using the portion taken?
  • Repeated use is less likely to be found as fair use.
  • How important is the used portion to the work? Courts have found that even when using a very small portion of the work, if it constitutes the “heart of the work” there is no fair use.
  • Special consideration should be taken when using photographs as, due to their nature, use tends to be of the entire work.

Effect on the potential market

Though the test is a balance of four factors, this factor can often loom particularly large in a court’s eye. Does the use hurt the market for the work? If so, then there is a strong chance to find against fair use. You should consider if the audience for your use is the same as the publishers intended market. Finally, market harm that comes as a result of criticism is not weighed under this framework.

On the fence?

If, after weighing the factors, you are still undecided, the best course of action is to seek permission from the rights holder. You should never assume that because your use is educational, that it will be okay.

Fair use resources

Columbia University Fair Use Checklist