Five Common Fair Use Myths

by Maria Scheid, Copyright Services Coordinator

Copyright-related symbols float in the air in front of a person using their laptop.

Fair use is an important right under copyright that allows the use of copyrighted materials, under certain conditions, to further research and teaching. If the use of a material is considered a fair use, it does not require permission from the copyright owner. The fair use of a work is not considered an infringement of copyright.

Courts determine a fair use based on the balancing of four factors:

  1. The purpose and character of the use;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect the use has upon the potential market for or value of the copyrighted work.

Because fair use does not contain bright line rules (objective rules that resolve legal questions in straightforward, predictable manners), there can be misunderstandings about the types of uses that may be deemed fair. Here are five common myths we hear about fair use.


Myth #1: Any educational or non-commercial use is a fair use.


The law provides some illustrative examples of fair use, including copies made for criticism, comment, teaching, scholarship or research. Additionally, under the first fair use factor of purpose and character of the use, a court considers whether a use is of a commercial nature or intended for nonprofit education purposes.

These examples of fair use provide general guidance on the types of copying courts have commonly found to be fair use, but a fair use analysis requires all four statutory factors to be considered and weighed in together. No one factor in a fair use analysis should be treated in isolation. Fair use has been found in cases of commercial and non-educational settings. Additionally, there have been cases where fair use has not been found for educational/non-commercial uses.


Myth #2: Using 10% or less of a work is a fair use.


There are no bright line rules written into the fair use statue. It is purposefully vague as to be adaptable to different situations and different technologies. Historically, courts have determined that the less you use, the more likely to favor fair use, but there are no determinative rules like 10% of a work. Consider what amount is reasonable in relation to the purpose of the use.


Myth #3: Any change to a work is considered transformative.


In considering the purpose and character of the use, courts will focus on whether a work is transformative. Not all changes, however, may be considered transformative. A transformative work alters the original work with “new expression, meaning, or message.”1

The scope of “transformative” may be further defined once the U.S. Supreme Court releases their decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.


Myth #4: Including a citation makes a use a fair use.


Citation is not a factor considered in a fair use analysis and does not, by itself, protect against a claim of copyright infringement. Citation and credit are academic standards, while copyright is federal law. Plagiarism occurs when you use someone else’s words or ideas without giving credit to the original author. Copyright infringement can occur if you infringe on the exclusive rights given to the copyright owner. You can plagiarize without infringing copyright, and you can infringe copyright without plagiarizing. It’s also possible for plagiarism and copyright infringement to occur at the same time.

See: “What’s the difference between plagiarism and copyright infringement?”


Myth #5: Fair use only applies to print materials.


The law does not make any reference to the types or formats of works that may be covered by fair use, which means that fair use is able to grow and adapt to new forms of technology. Fair use must be considered on a case-by-case basis following the four factors. That means that it can apply to video, audio, software, text or images. It is important to note however that many streaming services have terms of services that limit to personal, noncommercial use, where fair use may not apply. Some of these platforms have granted educational licenses for some of their original works.


Looking for more help in completing your own fair use analysis? The Fair Use Checklist from The Ohio State University Health Sciences Library can be used to help guide your reflection on the four fair use factors.  Copyright Services is also available to answer your questions. Visit for more information.

This work is being shared as part of Fair Use/Fair Dealing Week, an annual celebration of fair use and fair dealing. For more information and resources on fair use, visit

 1Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)