Fair use is a concept in US copyright law that was created to balance the exclusive rights of copyright owners and the needs of everyday users of copyrighted material.
Fair use of copyrighted works, as stated in US copyright law, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
This means that you do not need to obtain permission to use a copyrighted work if your use of the work meets the criteria and purpose of the fair use provisions in US copyright law.
Fair Use: the four factor test
Scholars, students, and teachers determining whether a given use of a copyrighted work is fair should utilize the four factors of fair use as outlined in US copyright law. Holistically, you should consider the following factors when determining whether your use is fair:
- Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- Nature of the copyrighted work
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole
- Effect of the use on the potential market for or value of the copyrighted work
Below is a table that describes some conditions that weigh toward or against fair use with respect to each of the four factors of fair use.
|FACTOR||Some things that weigh TOWARD Fair Use||Some things that weigh AGAINST Fair Use|
|Purpose and character of the use||Nonprofit, educational, scholarly or research use; criticism or commentary||Commercial use; Decorative use|
|Nature of the original copyrighted work||Using published, fact-based works (e.g. non-fiction)||Using highly creative works (e.g. poetry, fiction)|
|Amount and substantiality of the portion used in relation to the copyrighted work as a whole||Using only the amount needed for a given purpose; Using small or less significant amounts||Using the entire work, particularly when not needed for the given purpose; using the "heart of the work," or a proportionately large amount|
|Effect of the use on the potential market or value of the copyrighted work||Use that has no effect on the market for the work, or it is not possible to obtain permission to use the work||Use that undermines/competes with existing market for the work; or permission can be obtained readily for your purpose at reasonable cost|
Some things to keep in mind:
- Fair use should be determined by a holistic assessment of the four factors
- No black and white rules. Fair use is not determined by a checklist
- Not all educational use is a fair use
- Not all commercial use is an infringement
- Each use of a copyrighted work requires its own fair use assessment
Fair Use: principles and practices
- Crucial for a free society, it has an important relationship to the First Amendment
- Allows free expression, commentary, critique, public debate, free press
- Inherently flexible and adaptable to new contexts, uses, and technologies
- Lifeblood of scholarship, allows us to build on prior works
- Carries some risk since we must carry out our own, individual fair use assessments, but we accept such risk in order to do necessary and legitimate things
If you need help in making a fair use assessment, talk to us! Mark Clemente, firstname.lastname@example.org, Kelvin Smith Library’s Scholarly Communications Librarian, can walk you through each of the four factors to help you determine whether your use is fair.
These principles and overview of copyright are described in more depth in the Case Western Reserve University Copyright Compliance Policy.