Fair use is an exemption to copyright, permitting certain limited uses of copyrighted works without the permission of the copyright owner. It is a flexible defense, codified under Section 107 of the Copyright Act of 1976, to copyright infringement claims. The defense applies most pertinently in the context of scholarly teaching and research, criticism, commentary, news reporting and parody.
In order to determine if a use of a copyrighted work is fair use, four factors must be considered and weighed:
- 1. The purpose and character of the use. Non-profit educational uses, as well as uses that add to the original in a creative way or that analyze the original, are most protected in the fair use context. Commercial uses are the least protected.
- 2. The nature of the copyrighted work. Fair use more broadly protects uses of factual works than creative works, such as art and music. It also more broadly protects uses of published works than nonpublished works.
- 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Fair use is a stronger defense when only the amount of the original work that is absolutely needed for the fair use purpose is used. Is the copyrighted work central to the use? Is the copyrighted work transformed or analyzed? Those uses are more likely to be protected by fair use, as opposed to uses that are duplicative, decorative or for entertainment.
- 4. The effect of the use upon the potential market or value of the copyrighted work. Uses of works that are readily available commercially or for which revenue might negatively be impacted through unlicensed use are less protected by fair use.
The fair use analysis depends on the facts and circumstances, and no single factor is determinative. Fair use analysis is not necessary if the user of the copyrighted work has express permission or a license from the copyright owner, and that is typically the most advisable approach, whenever possible, to avoid a potential claim of copyright infringement.
Please visit the U.S. Copyright Office for More Information on Fair Use and guidance on the Reproduction of Copyrighted Works by Educators and Librarians.