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Copyright

Guide to General Copyright Information and Resources

What is Fair Use?

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.

The Four Factors

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:

  • Published.
  • 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.