Copyright Guide: Fair Use

This video is a classic fair use explanation.

Limitations have been built into copyright law to allow for continued scientific, scholarly, and artistic advancement in our society. The limitations can be found in sections 107 through 118 of the copyright law (title 17, U. S. Code).

The most prominent of these exceptions to a copyright holder’s exclusive rights is known as fair use.

Unless the work you would like to use is in the public domain, has a creative commons license, you have created it yourself, or you have already received permission from the copyright holder by written request or contract, you will need to evaluate whether your utilization of the work falls under fair use. In fact, even the process of informing yourself and evaluating your use of a source under fair use can protect you under the law. The University of Texas Copyright Crash Course offers this comforting information:

There is one special provision of the law that requires a court to refuse to award any damages at all, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use - as would likely be the case if you followed your institutional copyright policy or any of the other excellent resources available online these days!

(https://copyright.lib.utexas.edu/copypol2.html)

Section 107 lays out a description of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

The four fair use factors:

1. What is the character of the use?
2. What is the nature of the work to be used?
3. How much of the work will you use?
4. What effect would this use have on the market for the original or for permissions
   if the use were widespread?

Before you conduct a four fair use factors analysis, ensure that you have met these preliminary requirements:

·         The work was legally acquired (ie: purchased by you or received through a library)

·         Your use of the work does not conflict with any other contractual agreements. Already existing contracts always trump fair use.

The following explanation is used with permission from University of Texas, Austin’s Copyright Crash Course.

The following explanation is used with permission from University of Texas, Austin’s Copyright Crash Course.

FACTOR 1: What is the character of the use?

Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle are very beneficial: they add weight to a fair use claim, either cumulatively, if you have other factors on the left in your favor, or by minimizing the importance of a commercial use. Even commercial uses can be fair when they involve creative uses such as but not limited to parody, criticism and commentary.

A discussion of transformative uses is below under Factor 4.

FACTOR 2: What is the nature of the work to be used?

Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission. But here, uses in the middle tend to have little effect on the balance, sort of cancelling out this factor entirely.

Which way is your balance tipping after assessing the first two factors?

FACTOR 3: How much of the work will you use?

This factor has its own peculiarities. The general rule holds true (uses on the left tip the balance in favor of fair use; uses on the right tip the balance in favor of asking for permission), but if the first factor weighed in favor of fair use, you can use more of a work than if it weighed in favor of seeking permission. A nonprofit use of a whole work will weigh somewhat against fair use. A commercial use of a whole work would weigh significantly against fair use.

For example, a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copyshop would need permission for the same copying. Similarly, commercial publishers have stringent limitations on the length of quotations, while a student writing a paper for a class assignment could reasonably expect to include lengthier quotes.

Which way does your balance tip after assessing the first three factors? The answer to this question will be important in the analysis of the fourth factor!

FACTOR 4: If this kind of use were widespread, what effect would it have
on the market for the original or for permissions?

Ken Crews and Dwayne Buttler created this handy checklist to help with your fair use evaluation using the four factors. Use it to get an idea of whether your use may be acceptable under existing copyright law. 

Adapted from Black’s Law Dictionary 9^th ed.

A reasonable and limited use of a copyrighted work without the author’s permission, such as quoting from a book in a book review or using parts of it in a parody.  Fair use is a defense to an infringement claim. 

“Fair Use is not a right such as the right to vote or  right to free speech. Fair Use is a legal defense, for use when a person is accused of infringement. It means that the case is not settled based solely on whether there was an infringement, but on the judge’s consideration of the defendant’s Fair Use claim.”

(Keyser Ch. 2 p.3 Copyright for the Rest of Us)

Further explanations of fair use and evaluation tools:
 

University of Texas Copyright Crash Course

Michigan Tech Understanding Fair Use