Skip to main content

Copyright: Fair Use

What is fair use?

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.

Fair use questions?

You can contact Musselman Library's Copyright Committee for assistance with performing a fair use evaluation.

The committee will offer a recommendation based on your situation, but the committee does not provide legal advice or serve as a substitute for consultation with competent legal counsel on matters regarding compliance with copyright law.

The four fair use factors

Fair use gets determined on a case-by-case basis by weighing the following four factors against each other:

1. Purpose and Character of the Use

Gradient showing commercial use on left in red and educational use on right in green

 

Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.

Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

 

2. Amount Used in Relation to the Copyrighted Work as a Whole

Gradient showing "entirety of the work or heart of the work" on left in red and "small excerpt of the work" on right in green

 

Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likelyThat said, some courts have found use of an entire work to be fair under certain circumstances.

And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.

 

3. Nature of the Copyrighted Work

Gradient showing "fictional and unpublished" on left in red and "factual and published" on right in green

 

This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item).

Authors and creators also have the right to determine how their works are first published and presented, so using an unpublished work would count against fair use.

 

4. Effect on the Potential Market for or Value of the Copyrighted Work

Gradient showing "easy to purchase or license the work" on left in red and "difficult to obtain the work" on right in green

 

Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

 

This page was adapted from Sara Benson's Copyright Reference Guide, which is licensed under CC BY-NC 4.0.

Fair use tools and checklists

There are rarely clear-cut answers as to whether something counts as fair use or not. Here are a few tools you can use to evaluate your current situation and make a preliminary assessment.

  • Fair Use Checklist: Kenneth Crews and Dwayne Butler developed this checklist to help you consider various factors at play when assessing a fair use case. It is freely available from Columbia University Libraries
  • Fair Use Evaluator: The American Library Association's interactive tool assumes some familiarity with fair use principles but still walks users through a qualitative assessment of their particular situation
  • Common Fair Use Scenarios: Tracey Mayfield and Cathy Outten from California State University Long Beach compiled a list of frequently asked fair use questions and provided their evaluations for each one

Musselman Library
Campus Box 420
300 North Washington Street
Gettysburg, PA 17325