Learn more about fair use with our Fair Use tutorial.
What Is Fair Use?
As defined in Section 107 of the U.S. Copyright Act, fair use is a defense against charges of copyright infringement determined through the analysis and application of the four fair use factors:
- 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; and
- The effect of the use upon the potential market for or value of the copyrighted work.
When does fair use apply? Fair use frequently functions as an exemption to the copyright law for educational and socially important purposes such as teaching, research, criticism, commentary, parody, and news reporting; however, you cannot assume that all educational use is fair use. Anytime that you wish to use copyrighted material without permission you should consider all of the four fair use factors.
How do I know if my intended purpose is within the limits of fair use? The fair use statute provides only the framework for the analysis and application of the four fair use factors. This means that the law lacks specificity, but it also means that fair use is flexible enough to be applied in a wide variety of situations. It can be difficult to determine if your intended use fits within the limitations of the fair use statute. Fortunately there are a number of very useful tools available online to help you consider the four fair use factors as they apply to your intended use. See the resources section below, and our video on using a fair use checklist for more information on conducting a fair use analysis.
What if my use is outside the limits of fair use? If you do a fair use analysis and determine that your intended use does not qualify as fair use, you have a couple of options. First, you can obtain permission directly from the copyright holder. This process can take time and may involve paying some form of royalty or licensing fee. Copyright Services or the Health Sciences Copyright Management Office can assist you with that process. Your second option is to reconsider your intended use. You can review your fair use analysis and determine which factors of your intended use most oppose fair use and make changes to be more favorable. For example, you could reduce the amount of material or choose content from different works that might be more favorable to fair use. You could also try to find comparable works in the public domain or Creative Commons works that would meet your purpose.
Resources for Determining Fair Use
- Follow the Four Factors of Fair Use: Video on using a fair use checklist to help conduct a fair use analysis from The Ohio State University Libraries' Copyright Services.
- Fair Use tutorial: A chapter about fair use written by University Libraries' Copyright Services.
- U.S. Copyright Office-Fair Use: Information on the fair use exception from the U.S. Copyright Office.
- Columbia University Libraries Fair Use Checklist: A printable fair use checklist created by copyright expert Kenneth Crews.
- The Ohio State University Health Sciences Library Fair Use Checklist: An interactive version of the fair use checklist.
- ALA OITP Fair Use Evaluator: This is an interactive tool that also includes information about the four fair use factors.
- Thinking Through Fair Use: This is one more online tool that can help you make a fair use analysis.
- Code of Best Practices in Fair Use for Academic and Research Libraries
- Center For Media & Social Impact's list of Codes of Best Practices In Fair Use
- Fair Use for Nonfiction Authors: A guide from the Authors Alliance that presents nonfiction writers with common fair use scenarios.
- Fair Use FAQs: Explanation and summary of fair use and from the Authors Alliance
DISCLAIMER: The information on these web pages and that received from Copyright Services at The Ohio State University Libraries and the Health Sciences Copyright Coordinator is not legal advice, nor is either office legal counsel to the university or any members of the university community.