Copyright and Fair Use: Fair Use

Fair use is a legal doctrine that allows limited use of copyrighted material without needing permission from the copyright owner. Fair use promotes freedom of expression and can include uses of copyrighted works for criticism, commentary, news reporting, teaching, scholarship, or research. A common example of fair use is quoting someone else's writing in an academic paper. Without fair use it would be difficult to conduct research, discuss current events online, or teach using a variety of sources.

Fair use is described in section 107 of Title 17 of the U.S. Code, including the four factors that determine whether a particular use is fair:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(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 of the use upon the potential market for or value of the copyrighted work.

Fair use is determined on case-by-case basis. It requires the person using the copyrighted material to determine whether they think their use is fair based on the four factors. Documenting this analysis can help support a fair use claim if someone is accused of copyright infringement.

Fair use analysis is the process of applying the four factors to an intended use of copyrighted material to determine whether the use could be considered fair use. All four factor are weighed in a fair use analysis, and while an individual factor may not support fair use, the balance of the factors should lean in that direction. In summary:

1. Purpose and character of the use: Nonprofit use that is for education or scholarship and is transformative (adding new expression, meaning, or interpretation) is more likely to be considered fair use than commercial use or exact reproduction.
2. Nature of the copyrighted work: Use of published, factual work is more likely to be considered fair use than use of unpublished work and creative work, such art or fiction.
3. Amount and substantiality of the portion used: Use of a smaller portion of a work is more likely to be considered fair use than a large portion, although use of an entire work, such as an image, might be fair use depending on the other factors.
4. Effect on the market: Use that does not undermine the market or potential market for the original by offering an alternative is more likely to be considered fair.

Stanford Libraries' Copyright and Fair Use guide and Columbia University Libraries' Copyright Advisory Services give in-depth explanations of the four factors that guide a fair use analysis.

The following tools can help determine whether a proposed use of copyright material can be consider fair use and document the process used to make that determination: