Fair Use

Limitations and exceptions in copyright law provide a balance between the rights granted to authors and copyright holders, on the one side, and those of people who wish to use their works, on the other.  A number of limitations and exceptions in U.S. law enable uses of copyrighted works without prior permission or payment of a royalty. Fair use is one of them.

The fair use limitation in Section 107 of the copyright law is an important exception for educational institutions. But it is sometimes difficult to understand because, unlike other exceptions, it does not consist of specific instructions on how works may be used. It does not define up front which uses may be made of a work or which uses would be infringing, and it does not set the amounts or extent of third party works that may be used. It is a general exception intended to provide flexibility to courts for interpreting "fairness" in specific situations if a use is challenged by a rightsholder. The fairness of uses is determined by judges in court actions, based on the contexts of each case. Outside of litigation, the fairness of uses may be assessed by faculty, students, and staff by using reasonable judgment based on legal precedent.

The fair use limitation establishes that certain uses may be found not to be infringing, for purposes including criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research, based on four factors. The four factors are:

  • Purpose and character of the use
  • Nature of the copyrighted work
  • Amount and substantiality of the portion used in relation to the work as a whole
  • Effect of the use upon the potential market for or value of the work

Fair use assessments are made on a case-by-case, work-by-work basis because the circumstances surrounding each work and its use are different in each situation. All four factors need to be taken into consideration and assessed together.

Weighing for fair use are situations when the

  • Purpose involves education, research, criticism, comment, news reporting, transformative use, parody, non-commercial use.
  • Nature of the work is published, factual, informational, nonfictional.
  • Amount used is a small portion, a small quantity, or part that is not the “heart of the work.”
  • Effect on the market or potential market for the work is not to interfere with the market, or replace a sale, or harm the economic interests of the rightsholder.

Weighing against fair use are situations when the

  • Purpose involves commercial use, entertainment, or non-transformative use.
  • Nature of the work is unpublished or highly creative.
  • Amount used is a large portion, large quantity, or the “heart” of the work.
  • Effect on the market or potential market for the work is to interfere with the market, or replace a sale, or harm the economic interests of the rightsholder.

One of the most helpful resources for understanding fair use is the Fair Use Checklist created by noted copyright attorney Kenneth Crews, which is available on the website of the Columbia University Copyright Advisory Office.

The U.S. Copyright Office has developed the Fair Use Index to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair or not fair. This resource sheds light on the legal precedents that are the basis for fair use today.

Many other guidelines and best practices documents on fair use have been developed over the years by various organizations for various purposes. These documents change over time. No guidelines or best practices are definitive and none have the force of law or replace the law itself.

General rules of thumb on fair use:

  • Quoting, by using short excerpts of published works for teaching, as well as for academic research and publication, is generally accepted as a fair use. Attribution must always be provided. There are more considerations for unpublished works, such as the right of consent to first publication, privacy, and confidentiality issues.
  • Reasonable, limited, educational, scholarly uses of materials weigh toward fair use
  • Use an amount appropriate to the purpose and tied to critical analysis
  • Limiting the amount used and the frequency of use is more fair on the sliding scale of fair use
  • Interfering with the market for publishers, including textbook publishers, weighs against fair use
  • Consider whether the use will involve print-only access, restricted Internet access, or public Internet access. Publication and digital distribution require more consideration.
  • Always provide attribution