The following checklists provide a helpful step-by-step process for analyzing the four fair use factors.
Codes of best practices provide practical guidance for applying fair use. Many of the codes have been developed in partnership with The Center for Social Media.
Can I post this article on my course website? Can I stream a video for my distance learning course? Can I include images in my presentation?
The following websites provide answers to many of these questions and help illustrate how fair use may be applied in various situations encountered in the academic community.
In many cases, the scope of what is allowed is limited and many of the exceptions are limited to specific groups of people or types of activities. For example, the “Classroom Exemption” allows a teacher to play a video in a face-to-face classroom, the “Library Exemption” allows a library to make a copy of an article for a researcher, and the “First-Sale Doctrine” allows you to sell books you have purchased to a used bookstore.
One of the most important of the exemptions, Fair Use is also the most flexible of the exemptions. It does not specify numerical limits and is not limited to a specific situation, type of organization, or individual. It allows anyone to make limited use of copyrighted material without permission or payment of royalties. Fair use is especially applicable to the academic environment where criticism & comment, teaching, scholarship, and research are central to a university’s mission.
Proper application of fair use depends on the careful consideration of the context of the use. The “Four Factors,” are used to ask questions about how and why something is being used. These questions help to determine whether fair use is applicable to a particular situation.
This refers to the motivation for the use or why the work is used. For example, is the material being used for a non-commercial purpose, such as to teach a lesson in class, or for a commercial purpose, such as using photos to illustrate a book cover?
Educational purposes are usually looked at more favorably than commercial uses.
This refers to what is being used. Is the item factual or creative? Is it published or unpublished?
Factual and published works are generally considered better candidates than creative material.
This refers to how much of a work is used. Using smaller amounts of a work is generally viewed more favorably than larger amounts. Depending on the context, use of a larger amount may be acceptable. Substantiality refers to the significance an excerpt has to the work as a whole. Using a section that is considered the heart or most important part of a work may still be considered infringement even if the amount used is only a very small portion of a work. It is always better to:
Limit the amount used to what is needed to support a transformative purpose or instructional goal.
This looks at what effect a use has on the potential market for the work. Does a use have a negative impact on the ability to sell and profit from the original?
Something that competes with or supplants the original is not likely to be fair.
In the past, the "market" factor has had a significant influence on fair use decisions made in court. More recently, however, "transformative use" has become more influential. Related to the first factor, this refers to whether the work has been "transformed" by the use. Transformed in this context means how material is incorporated to create a new, unrelated work. This concept may also apply to cases where the work itself is unchanged but is used in an entirely different context than that of the original.
Transformative use is an important concept for the academic community because it is applicable to so many activities common in universities such as scholarly writing and instruction. For example, when quoting a passage from another work in a paper, the author "transforms" the original passage by taking it out of the context of the original and using it to illustrate a point in the new work. In another example, use of art images by an instructor in a lecture presentation in order to discuss or critique an artistic movement is transformative because the art images are being used in an entirely different context from the aesthetic purposes of the original.
While factors such as educational and transformative use are strongly favored as fair, they must never be the single deciding factor when analyzing a fair use claim. All four factors should be included in any analysis. Each factor has an influence over the other and it is possible that one or two other factors may shift the balance away from fair use. Since the facts will change depending on the item and the context, fair use should always be determined on a case-by-case basis.
For example, it is not appropriate to distribute entire copies of a textbook even though the copies are being used for educational purpose and there is no intent to make a profit. This is because the extent of the portion being copied is excessive. Additionally, copying a textbook to distribute to students competes directly with the original book, negatively impacting the market for the original.