Copyright & Fair Use: Fair Use

What is Fair Use?

Factor One - Purpose

Factor Two - Nature of Publication

Factor Three - Amount

Factor Four - Effect

Decision Making Tools

This famous poster of Barak Obama was created by the artist Shepard Fairey during Obama's first presidential campaign. Fairey sold copies of the poster of the street and it was then distributed, and its style copied, more widely on the internet. The image is a based on an Associated Press photograph. When the AP requested compensation from Fairey, he sued the AP claiming fair use. The case was settled out of court with the details kept confidential. What do you think? Did Fairey have a sufficient case to claim fair use?

Fair Use is a copyright exemption, but, unlike the others, the law does not lay out specific conditions that must be met in order for it to be used.

The Fair Use Doctrine (USC, Title 17, §107) states that:

…the fair use of a copyrighted work, including such use by production in copies, or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational uses;
(2) the nature of the copyrighted work;
(3) amount and substantiality of the portion used in relation to the copyrighted works as a whole; and
(4) the effect of the use on the market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding or fair use is such finding is made upon consideration of all the above factors.

The factors outlined above are known as the four factors. Users must analyize each when making a fair use determination. There is no definitive test for fair use; the law is intentionally vague on this subject. The user must make a good faith attempt to weigh and balance the four factors outlined above in order to come to a fair use conclusion.

Purpose of use: 

If the answer is for non-profit and educational use this generally weighs in favor of fair use. Commercial uses generally weigh against. However, not all educational uses will be fair and not all commercial uses will be unfair, so be sure to complete the entire analysis using all four factors.

Nature of the publication: Is the work you intend to use factual or highly creative? The use of factual materials, such as newspapers, research reports, and scholarly articles of factual nature, generally weighs in favor of fair use. The use of highly creative works, such as poems or plays, general weighs against.

Works are automatically copyrighted upon their creation. Publication is not a requirement for copyright protection. The use of unpublished materials is generally more restrictive than published ones.

Out of print works sometimes offer licenses to make copies, so it’s best to investigate this in your analysis. An active license affects the market (see also Factor Four).

“Consumable” materials, such as test forms, research instruments, and workbook pages, are meant to be used and repurchased.

Amount and nature of the work:

What is the amount of the portion of the work are you reproducing? The smaller the portion of the work being used the more likely the use will be fair. Limit reproduction only to the amount of material needed. For example, if only a few pages of a book are needed, do not reproduce the entire chapter.

What is the nature of the portion you are using? Use is more likely to be fair if the reproduced portion does not constitute the “heart” or essence of the work.

The law does not specify word counts or percentages of a work when analyzing the third factor. The Agreement on Guidelines for Classroom Use, authored by representatives of the educational community and publishers, and made part of the Congressional Record in 1976, has been considered a “safe harbor” when interpreting and applying this third factor during fair use analysis. Here you will find specified amounts for various types of works. Keep in mind that the Agreement has no legal bearing. It is a guideline only.

Effect on the market:

Are you reproducing the work only to avoid purchasing it? If so, this goes against fair use.

Ways to purchase the work include permissions through the Copyright Clearance Center, licensing of electronic resources, and the purchase of a hard copy.

Fewer copies favor fair use.

It is recommended that you use a checklist like the one found below to perform your fair use analysis in each instance of use. Print and permanently retain a copy of this analysis as documentation of good faith behavior in case legal protection becomes necessary.