Copyright

What is Fair Use?

Fair use is a doctrine that allows use of a copyrighted work without permission. Its goal is to balance the rights of the copyright holder with the rights of the public.

Fair use is an exemption to the exclusive rights of a copyright holder. It is part of copyright law.

Copyright law lists four factors to consider when determining if a specific use is fair or not.

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

• Nonprofit educational purposes are generally favored over commercial, entertainment, or for-profit uses. Other uses mentioned in copyright law include criticism, comment, news reporting, teaching, scholarship, or research.
• Transformative use, such as commentary or criticism, is favored over simply reproducing a work.

Factor 2: "The nature of the copyrighted work"

• Consider the type of work you want to use. Is it published or unpublished? The use of published works are more likely to be considered fair.
• Is the work you are using fiction or non-fiction?  The more creative the work, the less likely use will be fair.

Factor 3: "The amount and substantiality of the portion used in relation to the copyrighted work as a whole"

• Use the amount of the work that is necessary, but not more.
• Generally, the smaller the portion of a work used, the more likely the use is deemed fair.
• However, while a small portion of a work may be used, it should not be "the heart of the work.

Factor 4: "The effect of the use upon the potential market for or value of the copyrighted work."

• Use that does not impact the market for the work is favored over works that do.
• If you cannot realistically purchase or license the copyrighted work, your use of it weighs toward fair use.
• Use of a work that has a limited or restricted audience has a stronger fair use argument than use that makes the work widely available.

If you are relying on the fair use doctrine, document your decisions. Your documentation can demonstrate that you made a good faith determination of fair use if the copyright holder challenges your decision.

The Fair Use Checklist below may be helpful in tracking your fair use decisions.