Fair Use
Answer
“[T]he fair use of a copyrighted work . . . is not an infringement of copyright.
17 U.S. § Code 107
Copyright law provides for the principle of fair use which gives users the right to use copyrighted material without permission for certain limited purposes. If a use is fair, it is not necessary for the user to notify or seek permission from the copyright holder.
How to Determine Fair Use
Section 107 of the Copyright Act outlines the four factors used in deciding whether a use is fair.
- 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; and
- The EFFECT of the use upon the potential market for or value of the copyrighted work.
Each of the above factors has subfactors which influence how the factor weighs in deciding favor for or against fair use. No one subfactor determines whether a use is fair. All subfactors must be weighed together to make a decision. Think of each factor as a sliding scale from unfair to fair.
Purpose and Character of the Use
Nonprofit uses with social benefit are favored. Purposes such as teaching, scholarship, research, criticism, and comment are mentioned in the law as favorable.
While educational uses are often favored, not all educational uses are fair use.
Transformative purposes are also favorable in fair use cases. Transformative use is interpreted as either:
Utilizing a work for a purpose different from the purpose it was originally created.
ex. Creating a parody
ex. Scholarship, research, or education
Utilizing a work in a new creation that IS NOT a reproduction of the original
ex. Using portions of a picture in a collage
Nature of the Copyrighted Work
Using unpublished works or highly creative works such as films, novels, and songs are less likely to be considered fair.
Unlike with creative works, factual works are more likely to fall under fair use as facts are not copyrightable.
Amount and Substantiality
Using the “heart of the work” – the most important or crucial part of a work that garners interest or reflects the central purpose of the work – is unlikely to fall within fair use.
Materials for classroom use will generally be limited to brief works or excerpts from longer works.
Ex. A single book chapter, an individual article from a journal, or individual news article
It comes down to whether the amount and substance of the portion used are necessary for the purpose.
Effect on the Market
If the use of copyrighted material would either decrease demand for the copyrighted material or if the use would cause the copyright owner to lose revenue, then the use is more than likely not fair.
Fair Use at Governors State University
Review the Fair Use of Copyrighted Works for Education and Research
Other Fair Use Resources
17 U.S. Code § 107 - Limitations on exclusive rights: Fair use