The fair use exception exists to achieve a balance between copyright owners and the general public who may benefit from using copyrighted works without seeking permission. This exception is a limitation on the exclusive rights of the copyright owner and, when correctly applied, can be useful for some educational uses such as scholarship, teaching and research.
A good fair use conclusion can allow for use of copyrighted works under certain circumstances without seeking permission or paying usage fees.
The Law of Fair Use
“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- the nature of the copyrighted work.
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” (17 U.S.C. ¤ 107)
Note the Fair Use (Section 107) statute is brief, simple and understandable; however it is also vague and intended to be flexible. The strength of any fair use claim results more from a good reasoned analysis of the facts of each case and an evaluation of the interests of users and owners than from any formula devised to arrive at a correct conclusion for your specific situation. Your fair use conclusion may differ from that of others.
The Meaning of the Four Fair Use Factors
The purpose of the fair use provision is to allow limited use of copyrighted material without obtaining prior permission from the copyright owner. Consideration of all of the fair use factors explained below is required. However, all factors do not have to be on the favorable side to reasonably conclude that a valid fair use claim can be made.
A fair use analysis is fact driven. Each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different conclusions concerning the same set of facts.
The same fair use analysis applies to all formats and mediums, including the digital environment, and includes not only the right of reproduction but also the rights of performance, display, adaptation and distribution.
- Purpose and Character of the Use
This factor will generally weigh in favor of fair use if the proposed use is nonprofit and educational-as opposed to a commercial use. Most uses in the university environment can probably be characterized as nonprofit educational uses. But educational use alone does not automatically result in a finding of fair use, just as a commercial use is not always an infringing one. A nonprofit, educational use would likely favor a finding of fair use, but remember that the other three factors must also be considered. Additionally, with respect to the reproduction right, this factor is more likely to weigh in favor of fair use if the use is transformative rather than verbatim copying.
- Nature of the Copyrighted Work
This factor will generally weigh in favor of fair use if the work to be used is factual in nature (technical, scientific, etc.), as opposed to works involving more creative expression, such as plays, poems, fictional works, photographs, paintings, and so on. Fair use does not apply to some works, such as standardized tests, workbooks, and works that are meant to be consumed. The case for fair use becomes even stronger when there are only a few ways to express the ideas or facts contained in a factual work. The line between unprotected “facts and ideas” on the one hand and protected “expression” on the other, is often difficult to draw. If there is only one way or very few ways to express a fact or an idea, the expression is said to have merged into the fact/idea, and there is no copyright protection for the expression. Fair use applies to unpublished works as it does to published works, but the author’s rights of first publication may be a factor weighing against fair use if a work is unpublished.
- Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
Although there are no numerical or percentage limits, the larger the amount of a work one uses, the less likely it will be fair use. This deliberate flexibility in the statute allows each situation to be judged on its specific facts and allows the doctrine to be practical in the higher education setting. This factor also takes into consideration the quality of the portion taken as well as the quantity. Sometimes, even if only a small amount is taken, this factor may weigh against fair use if the portion can be justly characterized as “the heart of the matter.” It is not difficult to see how this factor and the fourth factor, market effect, work in tandem. The more of the original taken, in amount and substantiality, the greater the negative impact on the market for the copyrighted work.
- The Effect of the Use on the Market for or Value of the Copyrighted Work
This factor examines the anticipated effect of the use on the publisher’s market. If the proposed use is likely to become widespread and would negatively affect the market for or value of the copyrighted work, this factor would weigh against fair use. This factor is often cited as the most important of the four, although the factors all interrelate and must be evaluated in conjunction with each other.
Weighing and Balancing the Factors
A central principle of the fair use analysis is the flexible doctrine that Congress wanted us to test and adapt for changing needs and circumstances. The law provides no clear and direct answers about the scope of fair use or its meaning in specific situations. Instead, we are compelled to return to the four factors and to reach reasoned and responsible conclusions about the lawfulness of our activities. Reasonable people may differ widely on the applicability of fair use, but any reliable evaluation of fair use must depend upon a reasoned analysis of the four factors of fair use. If most factors lean in favor of fair use, the proposed use is probably allowed; if most lean the opposite direction, the purposed use will not fit the fair use exception and may require permission from the copyright owner.
The law permits some uses of materials protected by copyright when a reasoned analysis concludes the use qualifies for Fair Use. Use the Checklist for Fair Use to help determine if portions of, or all of the copyrighted work can be used without permission. Contact the Copyright Licensing Office if you have questions or need assistance. If desired, review the completed checklist with the Copyright Licensing Office, 422-9339 or 3760 HBLL
Tools for conducting a Fair Use Analysis
Checklist for Fair Use (PDF), BYU
Checklist for Fair Use, Georgia State University
A Fresh Look at the Fair Use Checklist, Kenneth Crews, Columbia University
Digital Image Rights Computator (DIRC), Visual Resources Association
Fair Use Evaluator, Michael Brewer, ALA Office of IT Policy
Copy Photographer Computator, Visual Resources Association
Fair Use and Best Practice Publications
American University, Center for Social Media
Best Practices in Fair Use of Dance-related Materials
Code of Best Practices in Fair Use for Poetry
Code of Best Practices in Fair Use for Online Video
Code of Best Practices in Fair Use for OpenCourseWare
Code of Best Practices in Fair Use for Media Literacy Education
Code of Best Practices in Fair Use for Scholarly Research in Communication
Documentary Filmmakers Best Practices in Fair Use
Examples of Successful Fair Use in Documentary Film
Fair Use Language for Course Syllabi
Fair Use in Media Literacy Education FAQ
Fair Use Scenarios
Remix Culture: Fair Use is Your Friend
Set of Principles in Fair Use for Journalism
Additional Fair Use Resources
U.S. Copyright Office Fair Use Index, U.S. Copyright Office
Code of Best Practices in Fair use for Academic and Research Libraries, Association of Research Libraries
The Good News about Library Fair Use (infographic), ARL, AU-College of Law/Communications
Statement on the Fair Use of Images for Teaching, Research and Study, Visual Resources Association
Fair Use and Video, Community Practices in the Fair use of Video in Libraries, ALA Video Roundtable
Best Practices in the Fair Use of Copyrighted Materials in Music Scholarship, American Musicological Society
Statement on the Digital Transmission of Audio Reserves, Music Library Association
Fair Use Principles for User Generated Video Content, Electronic Frontier Foundation
Fair Use in Education and Research, Copyright Advisory Office, Columbia University
Copyright Crash Course, Fair use of copyrighted materials, Georgia Harper, University of Texas
Educational Fair Use Today, by Jonathan Band, Association of Research Libraries
Copyright and Fair Use, Stanford University Libraries
Fair Use in a Nutshell, CopyLaw.com by Attorney Lloyd J. Jassin
Copyright Basics: Fair Use, Copyright Clearance Center
Myths About Fair Use, by Patricia Aufderheide, Inside Higher Ed, August 2, 2011
Fair Use Pyramid Chart, Copyright Licensing Office. Brigham Young University
Summaries of Fair Use Cases – Copyright Advisory Office, Columbia University
Court decisions regarding the question of fair use can provide insight in applying Fair Use to specific situations. Although there are not many cases directly related to the university community, the following summaries will offer some helpful understanding. These case summaries are authored by Dr. Kenneth H. Crews, Copyright Advisory Office, Columbia University. The structure of the four factors in Section 107 (Fair Use) of the Copyright Act, is followed:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
Summaries of Fair Use Cases – Stanford University Libraries
During and after enactment of the 1976 U.S. Copyright Act several fair use guidelines emerged. These guidelines were created as “safe harbor” standards by interested stakeholders representing a variety of interests. Related to the Copyright Act of 1976, Congress included in H.R. 94-1476, an initial set of Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals. During later years the Conference on Fair Use (CONFU) was established to help resolve copyright issues within emerging technology. CONFU released draft guidelines on distance education, multimedia, images, electronic reserve services in libraries, and interlibrary loan. No consensus agreement has been achieved surrounding CONFU guidelines and they remain in draft. In referring to the guidelines, it is important to note they are not the law and often express minimum standards for fair use.
While many institutions strictly adhere to the CONFU guidelines, Brigham Young University has chosen not to adopt them as official standards for the campus community. They are provided here for reference and information only.
Complete Conference on Fair Use (CONFU) report, United States Patent and Trademark Office
Classroom Guidelines (1976), Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals, Published in House Report 94-1476
Guidelines for Off-Air Taping for Educational Purposes