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Scholarly Communication Services - Fair Use: Essentials

What is 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) .  Fair use applies in limited and transformative purposes such as commentary and critiques, news, or parody (Stim, 2020). 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 (MIT Libraries, n.d.):

  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  Is the work published or unpublished?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.

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 & Instruction LibGuide and its pages:

Sources:  MIT Libraries (n.d.).  Fair use quiz. https://libraries.mit.edu/files/ospcl/fair-use-quiz/

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/

Fair Use Essentials
Scales of Justice

 

Please note: 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.

Fair Use in Plain Language

Evaluate Fair Use (Checklist)

Images source:  Pixabay.com, permission by CC0.

Fair Use Recommended Practices

When it comes to fair use, best practices and recommendations are created by communities of practice to provide lower-risk uses of copyrighted work.  Keep in mind they do not override copyright law.  

USLawEssentials. (2014). What is fair use? [Video]. YouTube. https://youtu.be/h2CY6OLRsGk

Fair Use is Everywhere!

In Colleges & Universities:

 Quotation MarkQuoting and paraphrasing the work of others.

Citing sources of information used in an assignment.

 

RecordingShowing a clip of an audio or video recording for a class or for a presentation.

In our daily lives:

Parody

Parody:  Music of Weird Al Yankovic; Documentary Now!

Why?  Fair use allows using some references to an original work to make a new, and often humorous or satirical take on it.

Fan fiction:  Fifty Shades of Grey (from Twilight); The Hours (from Mrs. Dalloway)

Why?  Derivative work. Although the same or similar characters may be used, they are used differently, and it is in a new work.

Search Engine

Search engines:  Google, Firefox

Why?  Transformative use.  A search engine collects and organizes metadata of web sites and files on the Internet, then makes the sites and files discoverable.

Source: Association for Research Libraries.  (2018).  Fair use fundamentals [Infograph]. https://www.fairuseweek.org/wp-content/uploads/2016/02/ARL-FUW-Infographic-r5.pdf

Images sources:  Pixabay.com, permission by CC0.