“The fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” – Title 17, U.S. Code, Section 107
Fair use is an exception to copyright that permits the use of copyrighted materials for certain purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Fair use is not limited to just these situations and may be found in a wide variety of circumstances. In fact, it is the most broad and flexible of the statutory exemptions, with none of the specific limitations and restrictions usually attached to copyright exceptions.
Since the fair use doctrine can be applied in almost any context, how can you decide whether an intended use may qualify as fair use? Fair use must be evaluated on a case-by-case basis, using a fact specific analysis of four factors for each use of copyrighted material:
- 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 four factors weigh the characteristics in favor and opposing fair use for each use of copyrighted material. All four factors must be considered holistically: no one factor is more important than the others, while a mechanical tallying of pros and cons is also insufficient to determine fair use. In fact, going to court and receiving a decision from a judge is the only way to find out for sure if a use is fair.
Don’t let this deter you from relying on fair use when it makes sense. Some instances of fair use are more obvious than others; if you aren’t sure that an intended use is fair, try to adjust how you are using the copyrighted materials in order to address the weak areas of your fair use analysis. For instance, use less of the work or restrict the audience to improve your standing on factors three and four. Several tools are available to help you evaluate fair use: an interactive tool from OSU’s Health Sciences Library and a printable checklist from Columbia University are two of our favorites.
By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries