Copyright at The College of St. Scholastica

Fair use, 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. 

Examples of these conditions include:

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

Be aware, though, that 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 and responsive in nature, allowing it to be applied to changing technologies, new uses, and innovation. It's the only exception in the Copyright Law that is adaptable to new technologies and uses that Congress could not imagine when the Copyright Law was written. 
• 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 conduct a fair use analysis prior to using any copyrighted work. Although it is not a requirement in the Copyright Law, you may wish to document your analysis and keep records of your use of copyrighted materials. This will assist you when updating course materials. The Fair Use Evaluator is a tool that will help you with making a fair use analysis. It will also allow you to create time and date stamped PDFs that you can keep in your records. 
• 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

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

Resources to Learn More:

• US Copyright Law (Title 17 § 107)

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?

When considering the first factor, generally, non-profit educational or classroom use favors fair use; whereas, commercial or for-profit 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 of a copyrighted item is automatically a fair use. Tying your use of an item to the curriculum, learning outcomes, and/or classroom activities will help tip the scale towards favoring fair use; whereas, "nice to know" or "supplemental" materials may not. Other activities or purposes that favor fair use include scholarship, research, news reporting, and criticism and commentary. In addition, there may be cases when for-profit or commercial use may favor fair use. This means that careful consideration is needed when considering fair use. 

Another purpose that favors fair use if whether or not your use of an item is transformative. A transformative use is when the use of a work or source is completely different or unexpected from its original purpose.  Examples of transformative works include parodies and new technologies. Additionally, critical analysis or commenting on sources; such as discussing film clips within a movie or plot points within a book may be considered transformative. A relatively new debate is whether or not video remixes or music remixes are transformative. You can find an example of a transformative use in Additional Resources on the Little Bit of Fun tab.  

Nature of the work:

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

For the second factor, generally, items that are published and fact-based or non-fiction favor fair use; whereas, items that are not published or that are more creative in nature do not favor fair use. 

Taking a closer look at this factor, fact-based or non-fiction works are sharing facts and information that benefits the public, which favors fair use. Creative or fiction works are primarily created to entertain the public, which tips the scale toward not a fair use. However, just because a work is fiction or creative, does not mean a use is not fair. A course in 20th Century literature, film studies, or art history may need to use a lot of creative or fictional works within the course to help students learn the concepts and learning objectives of the subject matter. 

Whether or not the work is published is also very important to consider.  Works or sources that are published more likely favors fair use. On the other hand, works that have not been published generally do not favor fair use because the author or creator has the right to decide if, when, and how the work will be made public. 

Amount and Substantiality of the work:

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

When considering the third factor, generally, using a lesser amount of a work will tip the scale towards fair use.  Furthermore, there are times when even using a small amount of a work may be considered excessive. If the portion you use is the "heart of the work," then the use may not favor fair use. The "heart of the work" may be considered the main point of the work or the "big reveal" of the work. Examples might include the refrain or the most memorable part of a song or the most extraordinary or creative elements of a film.

One thing to remember is that there are no exact amounts or limits outlined in the law. This means there may be times when using the full amount of a work will favor fair use. It is up to you to decide exactly how much you need to meet your objective. 

Effect on the market:

• Does the use of the copyrighted work impact the market for the original work?
• Is the work available in the format you want at a reasonable cost?

The final factor looks at the potential harm on the market. This includes looking to see if the work is available in alternative formats, such as streaming options, as well as whether or not the work is available to license at a reasonable price. When there is a clear market or an easy way to license the content, then the use of the work will more than likely not favor fair use. Additionally, making numerous copies of a work or making copies available digitally may not favor fair use. 

When considering the market effect ask yourself this question - is the use in question substituting for a sale the source's owner would otherwise make? In general, where markets exist or are developing, courts tend to favor the owner of the content, which means the use of a work will more like not favor fair use. However, it is still possible for a use to be fair even when there may be market harm. 

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Summing Up Fair Use

Copyright and Fair Use can be complicated; however, you can sum up the fair use of copyrighted materials in a few short words!

Title: Fair Use in Seven Words
​Published by: University of Virginia Library
License: Standard YouTube License
Length: 2:16 mins

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Many aspects of the US Copyright Law are broad, especially in the area of fair use.  Part of this allows for the essential freedom of expression provided for in the First Amendment of the US Constitution.  It also allows for free speech, free inquiry, and the open exchange of ideas that leads to progress. However, it can be very frustrating because many areas of the copyright law are not clear-cut in nature, which means that each possible use of a copyrighted work must be carefully reviewed.

In an effort to assist the public with interpreting copyright laws, many scholars, organizations, and associations have worked together to come up with Best Practices and Guidelines to use when interpreting the laws and determining fair use.  Although you may find some of these best practices and guidelines helpful, it is important to understand that these guidelines and best practices are not part of the copyright law.  Most are suggestions only.  Also, many of these guidelines and best practices may be outdated, may have expired, do not encompass everyone or all organizations, and some organizations or associations may have decided to opt out of these guidelines and best practices.  

Guidelines

When looking at guidelines and best practices, it is important to note their distinction. In general, many guidelines will be clear-cut rules of what can and cannot be done with a particular type of source (e.g., videos, music, or photographs). Additionally, many of these guidelines are created by the industry and based on their analysis of fair use and the copyright laws. Their analysis may be very restrictive in nature, which means their guidelines may be restrictive in nature. However, we should all understand that these guidelines are not legally binding!

Best Practices

Best practices are written by groups of scholars and experts from many fields.  When creating best practices, these scholars and experts do not create specific rules for using different items.  Instead, together as a group, they provide suggestions after reviewing common activities and uses of commonly used copyrighted materials.  As with guidelines, best practices are not legally binding.  In addition, one key difference between the two is that best practices acknowledge the flexibility of fair use; whereas, guidelines do not. 

When considering a copyrighted item, although best practices are not legally binding, it is still worth reviewing them. Not only will they include in-depth information and considerations for using copyrighted items, many judges’ decisions include commentary about consulting best practices. Furthermore, most best practices will include information about how the best practices were written, why they were written, and who they are for.  

Learn more:

• Key codes of best practices
• US Copyright Office - Reproduction of Copyrighted Works by Educators and Librarians, Circular 21

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