LibGuides: Fair Use: Home

Video

U.S. Copyright Office (2019). Fair use. [Video]. YouTube. https://youtu.be/IFhF_tHrj4s

About Fair Use

Fair Use

The Fair Use Doctrine, commonly known as fair use, defines the legal rights that allow copyrighted materials to be reused or copied without the permission of a copyright owner (17 USC § 107), depending on the details of use. Fair use applies in limited and transformative purposes such as commentary and critiques, news, or parody. Fair use is frequently relied on to legally reuse copyrighted works for educational, scholarly, or creative purposes.

There are no black and white rules of fair use, and copyright law is dependent on interpretation. Anyone who wants to use copyrighted work by applying fair use must assess and balance the following 4 factors through a fair use analysis (Stim, 2020):

FACTOR	WEIGHTING TOWARDS FAIR USE	WEIGHING AGAINST FAIR USE
Purpose of Use and Work's Character Is the use transformative? Why is the work being copied, and for what reason? Does its copying or use add a new meaning, character, message, or function of the work?	Nonprofit, academic, educational use; Criticism or commentary; Transformative use; Creating a new meaning or use.	Commercial, for-profit use; Decorative use.
Amount and Proportion of Work Used How much of an original work is being used in proportion to the original work, and is it a significant amount?	Small proportions of a work; Less significant amounts or content.	Using a whole work, especially when not needed for a given purpose; Using a proportionally large amount; Using the most significant content within a work
Nature or Type of Work Is the copyrighted work based on fact, or is it a creative work? Is the work published or unpublished? Is the purpose of the copyrighted work to inform or entertain?	Fact-based works (non-fiction); Published works.	Creative works (literature, poetry, or images).
Effect on Potential Market Value or Demand Does copying or reusing the work make it less valuable or affect the demand for it?	Use has no effect on market; Does not affect demand or use of a work.	Diminishes the demand or price of a work; The work can be readily obtained for a given purpose at a reasonable cost.

FACTOR

WEIGHTING TOWARDS FAIR USE

WEIGHING AGAINST FAIR USE

Purpose of Use and Work's Character

Is the use transformative? Why is the work being copied, and for what reason? Does its copying or use add a new meaning, character, message, or function of the work?

Nonprofit, academic, educational use;

Criticism or commentary;

Transformative use;

Creating a new meaning or use.

Commercial, for-profit use;

Decorative use.

Amount and Proportion of Work Used

How much of an original work is being used in proportion to the original work, and is it a significant amount?

Small proportions of a work;

Less significant amounts or content.

Using a whole work, especially when not needed for a given purpose;

Using a proportionally large amount;

Using the most significant content within a work

Nature or Type of Work

Is the copyrighted work based on fact, or is it a creative work? Is the work published or unpublished? Is the purpose of the copyrighted work to inform or entertain?

Fact-based works (non-fiction);

Published works.

Creative works (literature, poetry, or images).

Effect on Potential Market Value or Demand

Does copying or reusing the work make it less valuable or affect the demand for it?

Use has no effect on market;

Does not affect demand or use of a work.

Diminishes the demand or price of a work;

The work can be readily obtained for a given purpose at a reasonable cost.

Sources: Stim, R., (2020). Fair use: The four factors courts consider in a copyright infringement case. Nolo. https://www.nolo.com/legal-encyclopedia/fair-use-the-four-factors.html

____ (2020). What is fair use? Stanford University Libraries. https://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

Disclaimer: The FAU Libraries and its faculty, staff, and administration are not attorneys and cannot interpret the law. This information is provided for educational purposes only and does not substitute for advice from legal counsel.

Do you need information on fair use for teaching and instruction, whether it's face-to-face, hybrid, or online? See the Copyright for Teaching and Instruction Research Guide and its pages:

Essentials and Checklist

Fair Use -17 USC 107 (U.S. Copyright Law)
Fair use as defined by the United States Code.
U.S. Copyright Office Fair Use Index The Fair Use Index tracks a variety of judicial decisions to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair. The decisions span multiple federal jurisdictions, including the U.S. Supreme Court, circuit courts of appeal, and district courts. For each decision, there is a brief summary of the facts, the relevant question(s) presented, and the court’s determination as to whether the contested use was fair.
Copyright Law of the United States 17 U.S. Code Title 17: defines copyright, fair use, and other important terms.
U.S. Copyright Office - promotes creativity by administering and sustaining an effective national copyright system.
Fair Use (more information)
Copyright.gov

Fair Use in Plain Language

What is Fair Use? (Stanford University)
Fair Use of Unpublished Works (Harvard University) This comic describes the case, Salinger v. Random House, where an author successfully sued a publisher for using content from unpublished personal correspondences which had an impact on fair use until new laws were passed.
Fair Use: Presentations and Handouts (Research Guide)
By the FAU Libraries.

FAU Libraries Blog Posts

Evaluate Fair Use: A Checklist

Fair Use Checklist (FAU Libraries)
A checklist that helps weigh 4 fair use factors to evaluate if a work qualifies.

American Library Association's Fair Use Evaluator
A web form that you can use to create a date stamped fair use evaluation for your personal records.

Images source: Pixabay.com, permission by CC0.

Last updated on Jan 13, 2023 12:06 PM