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Copyright & Fair Use : Fair Use
 

What is Fair Use?

Fair use (Section 107 of the U.S. copyright law) is an exception to the rights of copyright owners. Fair use is the right to use copyrighted material without permission or payment under some circumstances, especially when the cultural or social benefits of the use are predominant. This includes purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. Fair use balances the needs of the public with those of copyright owners and preserves copyright's purpose to promote "science and the useful arts."

Fair use is an essential tool for helping institutions balance the risks involved in the unauthorized use of copyrighted material with their institutional missions and the value of the projects that would not be possible if copyright permission was required in every instance.

Four-Factor Test

According to copyright law, these four factors must be considered when making a fair use evaluation for each item you would like to use. 

Factor One: The Purpose and Character of the Use

This factor favors nonprofit, educational uses over commercial uses. Use of copyrighted material is more likely to be fair use under the first factor if it is for teaching (including multiple copies for classroom use), research, scholarship, criticism, comment, or news reporting. It is less likely to be fair if the user profits from the use or if the use is for entertainment purposes.*

Transformative uses are also favored under the first factor. These are uses in which the work is used in a new manner or context, distinct from the intended uses of the original.

Factor Two: The Nature of the Work

This factor favors fair use for nonfiction works that are factual in nature. Use under factor two is less likely to be fair for creative works such as novels, poetry, plays, art, photography, music, and movies.

The second factor is more likely to favor fair use if a work has been published and less likely if it has not, for example the unpublished letters of a historical figure.

Factor Three: The Amount and Substantiality of the Portion Used

The third factor is more likely to favor fair use when an appropriate amount of the copyrighted work is used in relation to the purpose of the use. Use of copyrighted material is more likely to be fair under the third factor when a small quantity is used and when the portion used is not central or significant to the entire work. It is less likely to be fair if a large portion or the whole work is used, and if the portion used is the "heart of the work."

Factor Four: The Effect on the Market

The fourth factor is more likely to favor fair use when the use of the copyrighted work does not harm the market for the work or its value. When a use is transformative, it is less likely that the market for the original work is damaged.

* Not all uses in an academic context are automatically considered fair use!

Fair Use Evaluator

Use the American Library Association's Fair Use Evaluator to help you determine whether a resource is fair use.

Subject Guide

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Melissa Olson

Fair Use Resources

Fair Use Fundamentals

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