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Copyright Decision Tree

Fair Use

Fair Use

Fair use is a limitation to copyright set forth in 17 U.S. Code § 107 for purposes such as criticism and commentary. There are four factors of fair use, each of which must be considered in an analysis:

  • Purpose and character of the use
  • Nature of the work
  • Amount and substantiality used
  • Market effect

There are no bright-lines or blanket applications for fair use. The facts of each potential use must be evaluated against the four factors. If one aspect of the use changes, a new analysis should be done.

The best person to do a fair use analysis is the user. You understand the facts of the use and how the four factors apply better than anyone. There are several resources that can help you conduct a fair use analysis:

Purpose and Character of Use

Favors fair use

  • Educational, scholarly, and research uses, and/or news reporting
  • Criticism or commentary
  • Non-profit use, including personal uses 
  • Transformative use (creates a new work with a new purpose), including parody and transformative technologies

Weighs against fair use

  • Commercial activity
  • Profiting from use
  • Decorative or other non-critical, non-commentary use

The first factor places a heavy emphasis on how you intend to use the work and whether or not it is transformative. Determining what is transformative is not easy, but courts have typically focused on whether or not it has added new expression or meaning to the work.

Creating new information, new aesthetics, new insights, and understandings—common uses in education and commentary—are also favored.

Uses that are merely transporting the work verbatim without new meaning or insight—such as using a picture to decorate a website—are going to weigh against fair use.

Nature of the Source

Favors fair use

  • Published
  • Factual or Non-Fiction

Weighs against fair use

  • Unpublished
  • Creative, artistic, or fiction source

You will have a stronger case for fair use if you copy material from a published work rather than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of their expression.

Because the dissemination of facts or information benefits the public, you also have more leeway to copy from or novels.

Amount and Substance Used

Favors fair use

  • Proportionally small excerpt, extract, or clip
  • Portion used is peripheral or not significant to the entire work 
  • Only as much as absolutely necessary for a favored "purpose"

Weighs against fair use

  • Entire work, or proportionally large extract
  • Portion used is the "heart of the work"

The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the “heart” of the work. And in some cases, such as parody, the entire work can be used without violating copyright. The best strategy in terms of amount is to use only the amount you actually need to accomplish your use.

Effect on the Market

Favors fair use

  • User owns lawful copy of the work (bought or otherwise legitimately acquired)
  • Only one or a few copies made
  • One-time use
  • Difficult to redistribute, or to make additional copies of the product of your use
  • Use stimulates market for original work
  • No impact on market for original work
  • No product marketed by copyright holder similar to your use
  • No way to pay or seek permission for your use

Weighs against fair use

  • Use directly substitutes for a sale that would otherwise have been made
  • Many copies made
  • Repeated or long-term use
  • Easy to redistribute, or to make additional copies of the product of your use (i.e. digital file, online use)
  • Impairs market for original work
  • Easily-obtained and affordable license or permission

Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. Depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.

Codes of Best Practices

Fair use analyses also consider community practices. The Center for Media and Social Impact at American University has worked with a number of communities – including librarians, filmmakers, journalists, and teachers – to create tools that provide further guidance on specific problems and practices related to fair use in their fields. These tools (freely available on their website) provide principles, supports, and limitations to specific, common examples within a field and can be very helpful in your own fair use analyses.