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Fair use is an important legal doctrine that we use every day when we quote from copyrighted works in papers, read a book chapter online for a class, enjoy a parody, or search Google Books.
Fair use arises out of the basic principles of copyright law, in particular the goal of advancing knowledge. One way this is done is by giving authors copyright in their work—the exclusive right to reproduce, distribute, publicly perform, and display their work for a limited period of time. Another way that our copyright laws advance knowledge is through the fair use doctrine, which allows the limited use of copyrighted materials without permission and without paying a license fee (Copyright Act,§ 107). For example, when scholars quote from previously published copyrighted works, they build on prior knowledge and create new knowledge.
The most frequent question about fair use is how to determine how much of a work can be used under fair use. There are no formulas or percentages in the law that set the limits for fair use. Instead, there are four factors that must be weighed and balanced to determine whether a given use is fair:
The purpose and character of the use: Educational uses are more likely to be considered fair use than commercial uses.
The nature of the copyrighted work: Using factual materials is more likely to be considered fair than using highly creative works.
The amount and substantiality of the portion taken: Using a small portion of a work is more likely to be considered fair use than using a complete work.
The effect on the potential market for the work: A use that has little to no impact on the market will be favored over a use that has a significant impact.
One advantage of this four-factor analysis is that it is broadly applicable to all copyrighted works in all formats, including text, images, video, and music, and a variety of uses, from scholarly writing to parody. The challenge with fair use is that weighing and balancing the four factors is subjective and fact-specific, and there can be uncertainty or disagreement about what is or is not fair use. For examples of how fair use disputes have been resolved by the courts, check out the case summaries by subject, date, or jurisdiction in the Copyright Office'sFair Use Index.
If you need to make a fair use decision yourself, follow these steps:
Learn the basics of copyright law and the fair use exception by reading ourcopyright andfair use pages.
As the user of the copyrighted materials, you are in the best position to do the fact-specific analysis required for fair use. Look carefully at each of the four fair use factors to determine where your use falls on the fair use scale from strong to weak for fair use.
After considering all four factors, make a determination about whether your proposed use is likely to be fair, and document your analysis.
If you’re unsure how to assess fair use in a particular situation, or if you believe your use may exceed fair use, contactMeg Oakley, Director, Copyright & Scholarly Communication, to discuss your specific situation.