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Copyright and Fair Use

Copyright was designed “to promote the progress of sciences and useful arts, by securing for limited times to authors and investors exclusive rights to their respective writings and discoveries.” Copyright is intended to be a balanced system between the rights of the copyright holder and the rights of copyholder. This balance allows people to receive an initial gain from their efforts but also enables the development of new creations.

Conducting a Fair Use Analysis

Fair use is vital to the growth of knowledge

Fair use is important for businesses, scholarship, and the arts. The creation of new ideas, including those for businesses and public services, are often dependent on work that has been previously done. Having a limited, but reasonable, exception to the exclusive rights of the copyright holder helps those engaged in all types all of research and development. In fact, the Computer & Communications Industry Association found that fair use positively impacts the economy.

A few things to know about fair use
  • Fair use is a legal exception to the copyrights granted to the author of a work. It is a part of the U.S. Copyright law and is available to anyone considering using a copyrighted work.
  • Not all educational uses are fair use. Although educational uses do tend to favor fair use, it is not enough to make a general statement that a work will be used for teaching and leave it at that. Even when a use is educational, the other factors must be considered as well.
  • Fair use needs to be determined on a case by case basis. Each instance where a copyright protected work is being used, must be individually analyzed for fair use. It is not enough to simply consider the work you are creating and make a blanket statement declaring all instances to be fair use.
  • Fair use is subjective. Copyright, especially fair use, can be ambiguous and subject to individual interpretation. There is no tool or method of analysis that will provide a guarantee of whether or not a particular use is fair. Instead people must rely on their informed judgment to make a good faith effort to decide if a use is fair. If you are uncomfortable with this kind of risk, ask permission to use the copyrighted work.
  • Fair use will not cover all uses of copyrighted works. Although fair use is an important tool in supporting educational and research efforts, it is also important to realize that some uses of copyrighted works are not covered by fair use. In these instances, it will be important to look at other alternatives, such as asking permission or paying a licensing fee.
How to conduct a fair use analysis
  1. When determining fair use, the U.S. Copyright law provides four factors that should be considered: purpose, nature of the copyrighted work, amount used, effect of potential market. Additional details about each of these factors are provided in the chart below.
  2. Evaluate the copyrighted material and how it will be incorporated into your work using these four factors. A great checklist to help with this can be found at the Columbia University Libraries – Copyright Advisory Office.
  3. After analyzing your use of the copyrighted work against these four factors, decide whether or not your use would be considered fair or not. Remember: No one factor outweighs another. They should be considered as a whole when making a fair use determination.
  4. Keep a copy of your analysis for your records.
Four Fair Use Factors
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
Favoring fair use:
  • Teaching (including multiple copies for classroom use)
  • Researcher
  • Scholarship
  • Nonprofit educational institution
  • Criticism
  • Parody
  • Comment
  • News reporting
  • Transformative or productive use (changes the work for a new purpose)
  • Opposing fair use:
  • Commercial activity
  • Profiting from the use
  • Entertainment
  • Bad-faith behavior
  • Denying credit to the original author
  • The nature of the copyrighted work
    Favoring fair use:
  • Published work
  • Factual or nonfiction based
  • Important to favored education objectives
  • Opposing fair use:
  • Unpublished work
  • Highly creative work (art, music, novels, films, plays)
  • Fiction
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    Favoring fair use:
  • Small quantity
  • Portion used is not central or significant to entire work
  • Amount is appropriate for favored educational purpose
  • Opposing fair use:
  • Large portion or whole work used
  • Portion used is central to or "heart of the work"
  • The effect of the use upon the potential market for or value of the copyrighted work
    Favoring fair use:
  • User owns lawfully purchased or acquired copy of original work
  • One or few copies made
  • No significant effect on the market or potential market for copyrighted work
  • No similar product marketed by the copyright holder
  • Lack of licensing mechanism
  • Opposing fair use:
  • Could replace sale of copyrighted work
  • Significantly impairs market or potential market for copyrighted work or derivative
  • Reasonably available licensing mechanism for use of the copyrighted work
  • Affordable permission available for using work
  • Numerous copies made
  • You made it accessible on the Web or in other public forum
  • Repeated or long-term use
  • This Fair Use Checklist was created by Kenneth D. Crews and Dwayne K. Buttler, and is available under a Creative Commons Attribution Only license.
    A few more things to remember about fair use
    • The final determination of whether or not a use is covered under fair use is made by the courts. Because fair use is subjective, the reality is only a ruling from a court can determine if a use is covered by fair use. This does not mean that fair use should be avoided for fear that we are not knowledgeable enough or have the authority to make a determination. However, it does mean that we will need to rely on our informed analysis and be aware that our decisions may be challenged. Want to learn more about how the courts have ruled in fair use cases? Check out the U.S. Copyright Office Fair Use Index – Search Cases page.
    • No one factor outweighs or is more important than all the others. A final determination of whether or not a specific use is fair should be made by evaluating all four fair use factors as a whole.
    • The refusal of a copyright holder to grant permission is not an automatic block to fair use. Fair use is a legal exception granted by the law. Just because a copyright owner doesn’t want you to use their work, doesn’t mean that they can deny you the right to claim fair use if appropriate. Having this right is especially important when dealing with works of criticism or parody. Allowing a copyright holder to control all instances of how their work is used could become censorship. Therefore it is critical that there are exceptions to that control. In these cases, however, be aware of the risks you are taking and seek assistance in deciding how to proceed.
    Need help with fair use?

    Contact your Library Liaison for assistance in finding and using copyrighted materials.
    Visit the General Counsel’s website for additional information on copyright.

    Teaching with Copyrighted Material

    U.S. Copyright law does allow some use of Copyrighted materials without permission for instructional purposes.

    Using Copyrighted Materials in Research

    These resources provide information about using Copyrighted material in your works.

    Learn more about how to protect your rights when contracting with publishers.

    • Creative Commons
      Info on how to manage your Copyright and retain specific rights to your works.