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Intellectual Property: Copyright, Fair Use, Permissions and Citations

Fair Use

What is Fair Use?

Fair use is a provision of US copyright law that allows exceptions to an author's exclusive rights to their creative work. The Provision, Section 107 of the US Copyright Act, allows for the use of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship and research." Other countries have their own version of copyright law, which is important to keep in mind when the copyright holder is outside the United States.

In the United States, using copyrighted material for educational purposes does not automatically mean the use is fair. The fairness of use is determined by weighing four factors. They are:

  • Purpose and character of the use: Is the use of copyrighted material intended for scholarship, research, teaching, criticism, comment, or news reporting? The use of copyrighted material for educational purposes is generally favored over commercial use. Is the use “transformative” (has it been changed in a way that is meaningful and not simply derivative)? Significant changes to the original work are often considered fair use.
     
  • Nature of the copyrighted work: Is the copyrighted work creative or instructive? A copyrighted work that is highly creative (art, music, fiction, poetry, etc.) may be protected more strongly than an instructive work. Is the copyrighted work unpublished? Unpublished works are protected more strongly because the courts generally protect an author’s right of “first publication.”
     
  • The amount or substantiality of the use: Will only a small portion of the copyrighted work be used? Is that portion “the heart” of the copyrighted work? A quotation or detail of an image may be weighted as fair use. However, a short snippet of a song, if embodying the character of the whole, might be weighed as unfair use.
     
  • Effect of the use on market value: Will the use of copyrighted material infringe upon the original author or authors ability to benefit from their creation? Will this affect the market value of the original work? 

To determine fair use you need to weigh all of the four factors, and not all factors are weighted in the same way for each use. Generally speaking, the use of copyrighted material can be considered fair when a majority of the factors meet the threshold of fair use.