Copyright law is complex and subject to change. This guide is intended as a general reference only and cannot substitute for legal advice.
Useful links for further information:
Fair Use
What is Fair Use?
Fair Use is an exemption to a copyright holder's ability to claim copyright violation. As such, it is an affirmative legal defense. But it is important to understand that most rights we hold dear are also subject to the kinds of negotiation that Fair Use demands -- consider all of the times when one person's first amendment right to free speech conflicts with another's, or with another's right to freedom of religion. We constantly negotiate these kinds of actions, relying on common sense to decide what's appropriate. In the case of fair use, we may not even realize that we are making these choices and often our decisions draw no notice. But if they do, it is important to understand the legal definitions in order to justify our decisions. (For an excellent discussion about many academic misconceptions regarding fair use, see Patricia Aufderheide's "Myths About Fair Use" that appeared in Inside Higher Ed.)
What sorts of things qualify as exemptions under copyright law?
According to the law, the following categories of material may be considered reasonable fair use: "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research." (Sec. 107). These are not the only possible exemptions, these are just the ones specifically cited in the law. Similarly, just because these categories may be fair use doesn't mean they definitely are. Remember, fair use is something determined by the judicial process. As an affirmative defense, it is the responsibility of the individual sued for violation of copyright to demonstrate that what they want to do is fair use.
How is fair use determined?
Four statutory factors are used to determine whether a use meets the Fair Use requirements. These factors are balanced against one another when considering whether a use is "fair." Even if a use easily meets three of the factors, the remaining one may outweigh the others when deciding if a specific use meets the requirements. Judges adjudicating a copyright case MAY weigh other factors as well. This is why anyone seeking to apply Fair Use should assess use on a case-by-case basis.
The factors specifically cited in the law are:
The Four Factors Explained
Let's look at the 4 factors in a little detail. All of the factors are weighed together when a legal decision is arrived at, and fair use is ultimately a legal defense. There are no tools or rules that guarantee something accords with fair use, because each instance is different! Using a tool like the ALA's Fair Use Evaluator helps demonstrate that prior to a specific use you've thoughtfully evaluated all of the elements involved and believe that the use meets the guidelines, NOT that a use would necessarily be determined fair in a court of law.
The Purpose and Character of the Use
This factor considers the intent of the proposed use. The other three consider issues about the original copyrighted work.
Is the proposed use intended for commercial gain? Is it educational and/or nonprofit? Proposed uses that are educational (such as education, research and scholarship) as well as criticism, commentary and news reporting all favor fair use.
That does not mean that all educational uses automatically meet this factor, however. While commercial uses have a more difficult time meeting this standard, they may in specific circumstances, as when a use is transformative.
Transformative use is whether a use substantively changes the original. The clearest example of transforming an original work is parody. An example of this would be the How It Should Have Ended videos, which take popular films and TV series and make fun of plot loopholes by showing alternative storylines. Not sure about the distinction between parody and satire, check out this entry on the Dear Rich intellectual property blog.
But specific technological transformation has also been identified by the courts, as in the case of image search engines. In that case the court concluded that the thumbnails used by search tools like Google's Image Search were significantly different than the originals because they were used strictly for the purpose of identifying search results.
The Nature of the Copyrighted Work
This aspect focuses on the creativity of the copyrighted work. "Facts" and "data" cannot be copyrighted, thus fair use is easier to claim when the copyrighted item is more factual. (The "facts and data" aspect impacts the fair use of charts and tables, which are representations of data, as explained in the University of Illinois Library's Copyright Reference Guide.) Works that are more creative (such as poetry or a movie) will be more protected from Fair Use.
Another part of this consideration is whether the original work has been published. Unpublished material has a higher standard for use than published work. The reasoning is that one person should not be able to gain advantage from the work produced by another and that the originator of a work should be able to decide the time and situation of its "first publication".
Amount and Substantiality of the Portion Used
This factor concerns two elements. First, does the proposed use take a reasonable portion of the original, or is it using more than necessary? If the amount used is more limited in relation to the entirety of the work, it more readily meets the fair use guidelines. But there are no easy and fast rules about what a reasonable percentage of a work is. Don't rely on a 10% rule or any website that specifies amounts.
But there's a second, critical concern. Does the use, even if small, take "the heart" of the work? If a use extracts the most distinctive elements of a work, no matter how brief, it may fail a fair use test.
Transformative uses, like parody, have greater leeway with this factor, because a larger part of the original may need to be used than might otherwise be allowed in order to achieve the new work's purpose.
Effect of the Use on the Potential Market
The fourth factor focuses on the extent to which the originator of the copyrighted work will suffer potential financial loss by use. This requires consideration of aspects like whether a specific use replaces a potential sale or licensing opportunity of the original, or even a potential derivative use. This factor weighs heavily in many copyright infringement suits.
Further Information
To get more in depth information on Fair Use (including detailed information about disclaimers, court decisions and examples), see Rich Stim's excellent discussion on the Stanford Libraries' Copyright and Fair Use site. Also review the Fair Use Evaluation Tools in the box on this page.