US copyright law's fair use exemption (Section 107) allows use of copyrighted materials without obtaining permission under certain circumstances. There is a four-factor analysis which must be applied to each use to determine if the use is fair. Applying these four factors is not always straightforward, and all four factors need to be considered when determining if fair use applies. However, all factors do not have to favor fair use to determine that a valid fair use claim can be made.
To determine if your intended use falls under fair use, check out the excellent Fair Use Evaluator tool at the Copyright Advisory Network.
PURPOSE & CHARACTER OF THE USE: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. Fair use is favored if the use is:
- For "criticism, comment, news reporting, teaching (including multiple print copies for classroom use), scholarship or research."
- Transformative: it uses the existing work in a new way or for a new purpose than the original work.
- By a nonprofit educational institution.
- For a limited audience, limited duration and/or restricted access.
NATURE OF THE WORK: the nature of the copyrighted work. Fair use is favored if the work is:
- Factual or nonfiction; works considered highly creative (i.e. fine art, musical works, drama) do not favor fair use.
- Not a consumable item (i.e. a workbook or standardized test).
AMOUNT OF THE WORK: the amount and substantiality of the portion used in relation to the work as a whole. Fair use is favored if:
- Only the amount required to achieve the stated purpose will be used.
- Only limited and reasonable portions will be used.
- The portion used is not the key part or "heart" of the work.
MARKET EFFECT: the effect upon the potential market for or value of the copyrighted work. Fair use is favored if:
- The work is not currently commercially available (i.e. out of print).
- Use of the work will have no significant effect on it's value or potential value.
- The user owns a legal copy of the original work.
- One or few copies are made.
- There is no license for the work that would prohibit the intended use.
- The copyright holder cannot be identified or found after a reasonable search, or does not respond to requests for permission to use the work.
- Checklist for Fair Use
- Fair Use Evaluator
- Fair Use Teaching Tools
The Center for Social Media has created a set of teaching tools for professors who are interested in teaching their students about fair use. The tools include powerpoints with lecture notes, guidelines for in-class discussions and exercises, assignments and grading rubrics.
- Academic and Research Libraries
This is a code of best practices in fair use devised specifically by and for the academic & research library community. It enhances the ability of librarians to rely on fair use by documenting the considered views of the library community about best practices in fair use, drawn from the actual practices & experience of the library community itself. It identifies eight situations that represent the library community’s current consensus about acceptable practices for the fair use of copyrighted materials & describes a carefully derived consensus within the library community about how those rights should apply in certain recurrent situations. These are the issues around which a clear consensus emerged over more than a year of discussions. The groups also talked about other issues; on some, there seemed not to be a consensus, & group members found others to be less urgent. The community may wish to revisit this process in the future to deliberate on emerging & evolving issues & uses.
- Dance-Related Materials
This Statement of Best Practices in Fair Use of Dance-related Materials, produced by the Dance Heritage Coalition, clarifies what librarians, archivists, curators, and others working with dance-related materials currently regard as a reasonable application of the Copyright Act's fair use doctrine, where the use of copyrighted materials is essential to significant cultural missions and institutional goals.
- Documentary Film
Documentary filmmakers have created, through their professional associations, a clear, easy to understand statement of fair and reasonable approaches to fair use.
- Film Stills
The Visual Resources Association has released a code of best practices in fair use for images for teaching, research and study. It describes six uses of copyrighted still images that the VRA believes fall within the U.S. doctrine of fair use.
- Media Literacy
This document is a code of best practices that helps educators using media literacy concepts and techniques to interpret the copyright doctrine of fair use. This guide identifies five principles that represent the media literacy education community’s current consensus about acceptable practices for the fair use of copyrighted materials, wherever and however it occurs: in K–12 education, in higher education, in nonprofit organizations that offer programs for children and youth, and in adult education.
- Media Studies Publishing
This code of best practices in scholarly publishing was created by the Society for Cinema and Media Studies to serve scholars in film and media studies.
- Online Video
This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts.
A code of best practices designed to help those preparing OpenCourseWare (OCW) to interpret and apply fair use under United States copyright law.
This code of best practices helps poets understand when they and others have the right to excerpt, quote and use copyrighted material in poetry.
- Scholarly Research in Communication
A code of best practices that helps U.S. communication scholars to interpret the copyright doctrine of fair use.
- Teaching for Film and Media Educators
This code of best practices in fair use in teaching for film/media educators was designed by The Society for Cinema and Media Studies. It deals with classroom screenings, broadcasts, and derivative works.
This Guide does not supply legal advice nor is it intended to replace the advice of legal counsel.
Much of the information in this guide has been reproduced with permission from the Copyright LibGuide developed by Brandeis University Library.