The Copyright Law prohibits reproducing and distributing copyrighted works. However, the "Fair Use Doctrine", set forth in Section 107, provides a set of guidelines pursuant to which researchers, educators, scholars, and others may use copyrighted works without seeking permission or paying royalties. When evaluating whether or not the use of a copyrighted work is "fair use", there are four factors which must be considered:
The safest course is always to get permission from the copyright owner before using copyrighted material.
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1. The purpose and character of the use
This factor addresses why, how, and in what setting the material is to be used. Courts have favored non-profit educational uses over commercial uses. Courts also favor transformative uses, such as criticism, commentary, parody, or news reporting, where portions of copyrighted works are blended into a new work. For teaching purposes, however, multiple copies of some works are allowed.
2. The nature of the work
The nature of work refers to the characteristics, qualities, and attributes of the work (e.g., fact, fiction, published, unpublished, etc.). Court cases have shown that copying a news magazine article (factual) is more likely to be allowed under Fair Use than copying a short story or other creative work. Use of commercial audiovisual works (CDs, videotapes, DVDs, etc.) generally is less likely to be allowed under Fair Use than that of printed works. The use of unpublished material is also less likely to be considered fair than the use of published material.
3. The amount and substantiality of the work
Fair use in this factor is measured both quantitatively and qualitatively. The use of the entire work can never be fair use. There is no set number or percentage for the amount of a work that can be reproduced. Quantity must be examined relative to the length of the original work. Substantiality is a qualitative measure that relates to the essence or heart of the work. A small portion of a motion picture, for example, may contain the most creative element of the work, and therefore using or reproducing it would not be favored under fair use.
4. The effect of the use upon the market
This factor, often the most important in the courts, examines whether the copyright owner’s sales of copies of the work or permissions to copy the work will be impacted by the use or reproduction. Making one photocopy of an article may have no adverse effect on the market, but making multiple copies of the same article may affect the potential market. In court cases, the weight of this factor has been examined in light of the first three factors.
Fair Use Check List: is based on the four factors of fair use-purpose, nature, amount and effect. Designed to help educators, librarians and others evaluate content uses to determine if fair use applies. The Checklist and this introduction is licensed by a Creative Commons Attribution License with attribution to the original creators of the checklist Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville).
Fair Use Evaluator: helps users collect, organize, and document the information they may need to support a fair use claim, and provides a time-stamped PDF document for the users' records. Developed by the American Library Association, Office of Technology Policy.
Thinking Through Fair Use: guides users through the process of determining if a use is fair. Developed by The University of Minnesota Libraries.