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Intellectual Property Toolkit

What is Fair Use


Fair User Fundamentals poster/file imageFair Use  is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.  Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. 
Section 107 calls for consideration of the following four factors in evaluating a question of fair use.

 

Image by theAssociation of Research Libraries.

Four Factors of Fair Use:

 

Each possible use of an existing work must be evaluated in detail. Four common factors are used to determined/defend a use of a particular item is fair. Courts evaluate claims on a case-by-case basis using the following factors as a starting point but decisions are based on fact-specific analysis

 

1.  Purpose and Character of the work

  • Commercial vs. non-profit use.
  • Non-profit is likely to be considered a fair use.
  • See below for additional information concerning transformative works. 

2.  Nature of Original Work 

  • Degree to which the work used relates to the copyright's purpose.
  • Factual vs. imaginative work - Works based on fact favors fair use. 

3.  Amount and Substantiality of the Portion Used

  • Quantity and Quality
  • Typcially cannot use the "heart" or "substantial" amount of a particular item.

4.  Effect of the Use on the Potential Market For or Value Of the Source Work

  • Ask yourself, does the use of the material affect the market or potential market of the original work?

The "Fifth Factor" - Transformative Use (Connected to the first factor considering character/purpose of a work.)

Consider the following:

  • Are you using the material in a new way that further's the purpose or changes the character of the work? 
  • Can you use replace the original use of the work?
  • This new area of copyright law is still developing. Common examples include parody, commentary, and satire.

Credit:

The content of this page was adapted from several sources including U.S. Copyright Office Fair Use Index and the Legal Information Institute of Cornell Law School Legal Information Institute's Wex, legal dictionary's definition of Fair Use