What is Fair Use?
"Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances."
Source: United States Copyright Office
Fair Use does not require securing or paying for permissions to use someone else's copyrighted work. The idea behind Fair Use in academic settings is largely to promote the sharing and creation of knowledge and creative works. The doctrine of Fair Use makes it easier and quicker to use the works of others when you don't have to ask or pay for permissions.
However, Fair Use is not what many of us think it is, or wish it were. Determining Fair Use is done on a case-by-case basis, each time you wish to use someone else's copyrighted work. To determine if your proposed use of someone else's work is considered Fair Use, you must thoroughly review a legal framework of four broad guidelines known as the Four Factors:
- Purpose & Character of Use
- Nature of the Copyrighted Work
- Amount & Substantiality of the Portion Used
- Effect on Potential Market
Each one of these Four Factors must be considered and balanced with the others to gain an overall picture of your intended use and to help you reach an informed decision. Don't stop after reviewing just one factor!
Let's briefly unpack these Factors, one by one.
Lengthier explanations and examples for all of these can be found on Copyright.gov from the U.S. Copyright Office.
1. Purpose & Character of Use - will your use be educational in nature, non-profit, for scholarly criticism or research? Or do you plan to sell or profit from using or embedding the work into your own? Will you significantly transform the original and add to it, or will you use it exactly as is? Will you create a parody of the original?
* Fair Use favors educational and non-profit use, as well as creative transformations.
2. Nature of the Copyrighted Work - is the item factual or mere reporting in nature, or is it creative? Is it published or unpublished? Remember, copyright law in the U.S. was intended to protect authors' rights and creativity, and to encourage publications.
* Fair Use favors use of "cut and dry" factual material and published material. (Using creative literary works, original research, music, films, photographs, and so on tends to lean away from Fair Use, as does use of unpublished works.)
3. Amount & Substantiality of the Portion Used - how much do you intend to use? A small part, or the entire thing? Or the most important parts?
* Fair Use favors small portions, "small" being defined in relation to the entire work. (However, if a "small" portion is the most important part of an item, that may not be considered Fair Use. Use of the entire work also leans away from Fair Use.) You may hear that "up to 10% of a work" would automatically be Fair Use, but in reality, determining Fair Use is always a case-by-case review that must take into consideration the concept of "substantiality," not only a simple estimate of quantity.
4. Effect on Potential Market - will your use have little to no impact on the use or value of the original? Or will it have a negative impact, such as obscuring whose original work that was, or depriving the creator / copyright holder of sales or opportunity to distribute their own work? Will you use it just once, or repeatedly? How do you intend to "share" or distribute or post or re-publish? Will others be able to copy and redistribute to others in turn? According to copyright lawyers, this factor can also transcend the individual item and rather consider a scenario of "what would happen if everyone were to do this with this type of material."
* Fair Use favors no adverse impact on the original creator or copyright holder, or negative impact on market value of this type of material & use in general.
Consideration of these factors should help you determine with some confidence whether your intended use is indeed Fair Use or not. If you decide it is not Fair Use, your next step is to identify and contact the copyright holder(s) and ask for permissions and pay any necessary fees. Another step might be to seek out alternatives to copyrighted material, such as identifying and using public domain material and Creative Commons materials that allow usage.
Remember, even if a use has been determined to be Fair Use, you still need to cite the source to give credit to the original creator.