Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:
1. The PURPOSE and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.
2. The NATURE of the copyrighted work, whether it is of educational or recreational use.
3. The AMOUNT and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The EFFECT of the use upon the potential market for or value of the copyrighted work.
In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances.
The U.S. Copyright Office's factsheet on "Fair Use" notes that
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
Consider how and why you are using the work. Criticism, commentary, research, scholarship, and other educational purposes are generally favored over commercial use or merely a reproduction of the original. Use that is transformative, meaning that it adds new character or value to the work by using it to frame a larger academic discussion or research paper are also generally favored.
Favoring Fair Use |
Opposing Fair Use |
Teaching/research/scholarship | Commercial activity |
Criticism/commentary | Profiting from use |
Parody | Entertainment |
News reporting | Denying credit to original author |
Transformative use |
Note how much of the work you are using. Although the law does not offer an exact permissible amount, generally, the less you use, the more likely it would favor fair use. The amount or portion used is measured against the entire work in which it appears. In most cases, one chapter from a book or one article from a journal issue would be permissible. There may be occasions, however, when this amount is considered the “heart of the work” and would require further analysis.
Favoring Fair Use |
Opposing Fair Use |
Small extract, excerpt, or clip | Large portion |
Portion used not central to work | Entire work |
Amount appropriate for educational use | Portion used is "heart of the work" |
Codes of Best Practices from the Center for Media & Social Impact - Identifies 18 Codes of Best Practices for everything from Open Education Resources to Online Video to Media Literacy Education, etc.
Examine the type of work being used. Generally, works that have been published and are factual or scientific in nature are favored over creative, imaginative, artistic, or unpublished works. Certain “consumable” materials that are meant for one-time use such as workbooks or quizzes are not typically considered for fair use. Additionally, the more educational the use, the more favorable the consideration for fair use, including creative works.
Favoring Fair Use |
Opposing Fair Use |
Published Work | Unpublished work |
Fact-based or nonfiction work |
Creative work (art, music, film, etc.) |
Determine how the use of a copyrighted work would affect the market for that particular work and how such use would cause economic harm to the copyright holder. Courts typically do not favor fair use if appropriate licensing or permissions are available for purchase for the work in question. However, if the first three factors favor fair use, particularly for educational purposes, such use would not be considered as detrimental to the market for the work. Conversely, if the first three factors indicate use that does not favor fair use, especially use for commercial benefit, then the market effect would be viewed negatively.
Favoring Fair Use |
Opposing Fair Use |
One or few copies made | Multiple copies, not for educational use |
Use favors market for original work | Impairs market for original work |
No impact on market for original work | Repeated, long-term use |
No licensing mechanism available | Licensing mechanism available |
Original work lawfully acquired |
This guide is designed to provide basic, general information about copyright, and does not constitute legal advice, it is for reference purposes only. The links to third party sites in this guide are provided for your convenience. Klinck Memorial Library does not take responsibility for the content of these other sites.
Created November 20,2024 by Ann Berens & Erika Quintana