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Copyright: Fair Use

Copyright guidelines for faculty, staff, and students at CSS.

Fair Use Basics

Decorative

Section 107 of the U.S. Copyright Law is one of the most powerful provisions of the copyright law. This exception allows the use of copyrighted materials for a limited and transformative purpose without asking for permission or paying royalty fees as long as the use of the work meets certain conditions. 

These conditions include:

  • Education
  • Research
  • Commentary or criticism
  • News reporting
  • Satire or parody

                   Image in the Public Domain

However, just because a use falls under one of these conditions, does not mean the use will automatically be a fair use. You must conduct a fair use analysis and consider the four factors outlined in U.S. Copyright Law.

Before considering fair use, it is important to understand some key points about fair use.

  • Fair use is a fundamental right.
  • Fair use is flexible in nature allowing it to be applied to changing technologies and innovation. It's the only exception in the Copyright Law that is adaptable to new technologies. 
  • Fair use is a balancing test comprising of four factors.
  • Fair use tries to balance the rights of the creator or author vs. the rights of the user.
  • The user must consider all four factors equally and prior to the use of a copyrighted work.
  • Users should document their reasoning for why a use is a fair use prior to using the copyrighted work.  It is recommended that this documentation be kept for a minimum of three years after the item is used. See the Fair Use Evaluator which will help you with a fair use analysis.
  • If ever in doubt about whether the use of an item is a fair use, then consult an attorney and/or ask for permission.

 

The four factors of fair use as outlined in the U. S. Copyright law are as follows:

  1. Purpose and character of the use
  2. Nature of the copyrighted work
  3. Amount and substantiality of the work that is used  
  4. Effect of the use on the marketplace

Considering the Four Factors of Fair Use

Each time you are considering the use of a copyrighted work, you will need to consider all four factors of fair use. No one factor weighs more in importance than any of the other factors. They should all be reviewed and considered individually and as a whole. Be aware that even after considering all four factors, you will rarely have a definite answer. Most of the time, your analysis will lean towards either being fair or not being fair. Only a court of law can provide a definitive answer in either direction.

There are a number of questions and other considerations you should be aware of when considering fair use. 

Purpose & Character of the work:

  • What are you using?
  • Why are you using it?
  • Is it for non-profit or commercial use?
  • Is the work being transformed into something new?

Generally, non-profit educational or classroom use favors fair use; whereas, commercial use generally does not favor fair use. But be aware that just because you work for a non-profit institution does not mean every use is automatically a fair use. Tying your use of an item to the curriculum, learning outcomes, and/or classroom activities favor fair use; whereas, "nice to know" or "supplemental" materials may not. In addition, there may be cases when for-profit or commercial use may use fair use. This means that careful consideration is needed when considering fair use. 

 

Nature of the work:

  • Is it published or unpublished?
  • Is it creative, fact-based, or non-fiction?

Items that are published and fact-based or non-fiction will generally favor fair use; whereas, items that are not published or that are more creative in nature will generally not favor fair use. 

 

Amount and Substantiality of the work:

  • How much of the copyrighted work is being used?
  • Is it the "heart" of the work?

The third factor is linked closely to the first factor. 

Copyright Questions?

The College of St. Scholastica Library provides assistance and guidance with copyright questions for CSS faculty, staff, and students. Please email Julie Rustad with your questions or visit our website for more information.

Learn More about Fair Use

Fair Use Tools

Legal Advice Disclaimer

The information presented in this guide is intended for informational and educational purposes only. It is not offered as legal advice or counsel. Faculty, staff, students, and others associated with the college should consult an attorney for advice concerning their individual copyright situations and needs.