What Is Fair Use?

When Permission Is Not Required for Use of a Copyrighted Work…

You must normally obtain permission from the copyright owner to lawfully engage in any of these activities:

• Produce copies of a work
• Prepare derivative works based on an original work
• Distribute copies of a work
• Perform a work in public
• Display a work in public

However, there are certain “favored purposes” that support production of new knowledge through writing and/or teaching, which may be considered “fair use.” Fair use is an exception to the requirement to ask permission, and its application is treated on a case-by-case basis. Some of these “favored purposes” include:

• Commentary/Criticism
  • Example: This critical essay on Wuthering Heights includes a passage from the novel.
• Parody
  • Example: In 2011, the 7th Circuit Court ruled that the TV show South Park‘s parody of a viral video was fair use.
• News Reporting
  • Example: This article about an advertising campaign includes a screenshot of a TV commercial as an illustration.
• Teaching
  • Example: A film may be shown in a classroom as part of the curriculum (as long as specific criteria are met).
• Research
  • Example: A researcher may make a single copy of a scholarly article for personal use.

How Can I Determine if My Intended Use of a Work Is “Fair”?

The Four Factors

Section 107 of the Copyright Law essentially says that a “fair use” is not an infringement of copyright. The Courts developed the four factors that must be weighed in making a decision concerning whether any particular use fits within the definition of fair use. Each use of a work should be preceded by a consideration of these four factors:

1. The purpose and character of the use, including whether it is educational or commercial
2. The nature of the copyrighted work
3. The amount and substance of the portion used
4. The effect of the use on the potential market for or value of the work

Each factor can be visualized as a continuum, on which a particular usage can be positioned as either more or less likely to be fair:

Image courtesy of the University of Minnesota Libraries Copyright Program (source).

The fair use doctrine was created with the idea of the “reasonable person” in mind. In other words, would a reasonable person, after reviewing these factors, believe a particular use of a copyrighted work to be fair? But because every case is different, there is no way to draw up a conclusive list of what is fair use and what is not. As the U.S. Copyright Office notes, “there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.”

Further Reading

• “Fair Use FAQs for Professors” (PDF) – from the Center for Social Media at American University, the Association of Research Libraries, and the Washington College of Law at American University
• “Fair Use FAQs for Students” (PDF) – from the Center for Social Media at American University, the Association of Research Libraries, and the Washington College of Law at American University
• “Can I Use That? Fair Use in Everyday Life” (PDF) – from the University of Minnesota Libraries
• Copyright and Fair Use – from the Stanford University Libraries
• “Reproduction of Copyrighted Works by Educators and Librarians” (Circular 21, PDF) – from the U.S. Copyright Office