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Hamersly Library

.Copyright and Fair Use: Fair Use

LEGAL DISCLAIMER: THE CONTENT ON THIS WEBSITE IS INTENDED FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE.

What is fair use?

Fair use is the copyright doctrine that allows the reproduction of copyrighted materials for certain purposes without asking permission.

Fair use may not be what you expect, however. Whether or not you are within the boundaries of fair use depends on the facts of your particular situation. What exactly are you using? How widely are you sharing the materials? Are you confining your work to the nonprofit environment of the university?

 Used under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.

What are the four factors of fair use?

To determine whether you are within fair use, the law calls for a balanced application of these four factors:

(1) the purpose of the use;
(2) the nature of the work used;
(3) the amount and substantiality of the work used; and
(4) the effect of the use upon the potential market for or value of the work used.

Used under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.

Factor 1: The Purpose and Character of the Use

The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. Be careful, though. Not all nonprofit educational uses are “fair.” A finding of fair use depends on an application of all four factors, not merely the purpose.

Courts also favor uses that are “transformative.” Fair use is more likely to be found when the copyrighted work is “transformed” into something new, is used for a different purpose than the original, or when value is added to the work.

Transformative uses include, but are not limited to:

1. Quotations incorporated into a paper
2. Pieces of a work (or works) included in criticism or comment
3. Pieces of a work (or works) mixed into a multimedia product for your own teaching needs

4. Showing video clips to illustrate an idea
5. Placing works in an historical context
6. Showing a movie for purposes of exploring the narrative, artistic, cultural, economic, and/or political implications of the film

Based on and used (with modification) under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.

Factor 2: The Nature of the Use

This factor centers on the work being used, and the law allows for a wider or narrower scope of fair use, depending on the characteristics or attributes of the work. For example, the unpublished “nature” of a work, such as private correspondence or a manuscript, can weigh against a finding of fair use. The courts reason that copyright owners should have the right to determine the circumstances of “first publication.”

Use of a work that is commercially available specifically for the educational market is generally disfavored and is unlikely to be considered a fair use. Additionally, courts tend to give greater protection to creative works; consequently, fair use applies more broadly to nonfiction, rather than fiction. Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works.

Used under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.

Factor 3: The Amount or Substantiality of the Portion Used

Although the law does not set exact quantity limits, generally the more you use, the less likely you are within fair use. The “amount” used is usually evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective. However, sometimes the exact “original” is not always obvious. A book chapter might be a relatively small portion of the book, but the same content might be published elsewhere as an article or essay and be considered the entire work in that context.

The “amount” of a work is also measured in qualitative terms. Courts have ruled that even uses of small amounts may be excessive if they take the “heart of the work.” For example, a short clip from a motion picture may usually be acceptable, but not if it encompasses the most extraordinary or creative elements of the film. Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “scoop.”

On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose. Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount,” and this may not be a fair use. On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.” Such a version of an image might adequately serve educational or research purposes.

Used under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.

Factor 4: The Effect of the Use on the Potential Market

Effect on the market is perhaps more complicated than the other three factors. Fundamentally, this factor means that if you could have realistically purchased or licensed the copyrighted work, that fact weighs against a finding of fair use. To evaluate this factor, you may need to make a simple investigation of the market to determine if the work is reasonably available if you are using a large portion of a book that is for sale at a typical market price.

Effect is also closely linked to "purpose." If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect may be easier to prove. Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works.

Used under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.