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One of the most important limits on copyright protection is called “fair use.” Fair use ensures that copyrighted works are still available to reuse for socially-valuable purposes such as teaching, news reporting, parody, or critical comment. These fair uses of copyrighted materials can be made without permission from the copyright owner.
In its most general sense, a fair use is a use of copyrighted material done for a limited and “transformative” purpose such as to comment upon, criticize or parody a copyrighted work. In practice, determining whether or not a particular re-use is “fair” involves making a judgement based on balancing the various aspects of the use that are more and less fair.
Copyright law provides four factors to consider when determining whether or not a use is fair:
This is the only factor that deals with the proposed use—all the others deal with the work being used, the source work. Purposes that favor fair use include education, scholarship, research, and news reporting, as well as criticism and commentary more generally. Non-profit purposes also favor fair use (especially when coupled with one of the other favored purposes). Commercial or for-profit purposes weigh against fair use.
One element of this factor is whether the work is published or not. It is less likely to be fair to use if the work is unpublished—which makes sense. Basically, making someone else’s work public when they chose not to is not very fair, even in the schoolyard sense. Nevertheless, it is possible for use of unpublished materials to be legally fair.Another element of this factor is whether the work is more “factual” or more “creative.” Borrowing from a factual work is more likely to be fair than borrowing from a creative work. This is related to the fact that copyright does not protect facts and data. With some types of works, this factor is relatively easy to assess: a textbook is usually more factual than a novel. For other works, it can be quite confusing: is a documentary film “factual”, or “creative”—or both?
Amount: A use is usually more likely to be fair if it uses a smaller amount of the source work, and usually less likely to be fair if it uses a large amount, but the amount is proportional. A quote of 250 words from a 300-word poem might be less fair than a quote of 250 words from a many-thousand-word article. Because the other factors also all come into play, sometimes you can legitimately use all of a source work and still be making a fair use. But less is always more likely to be fair.
Substantiality: This element asks, fundamentally, whether you are using something from the “heart” of the work (less fair), or whether what you are borrowing is more peripheral (and more fair). It’s fairly easily understood in some contexts: borrowing the melodic “hook” of a song is borrowing the “heart”—even if it’s a small part of the song. In many contexts, however, it can be much less clear.
Put simply, this factor asks if the use in question is substituting for a sale the source’s owner would otherwise make—-either to the person making the proposed use, or to others. Generally speaking, where markets exist or are actually developing, courts tend to favor them quite a bit. Nevertheless, it is possible for a use to be fair even when it causes market harm.
Each fair use decision requires thinking about all four of the factors and determining if, on balance, the specific use is more fair than not. Even the most knowledgeable and conscientious person making a fair use decision is really only deciding if the use is “likely to be fair” or “not likely to be fair.” The only way to get a definitive answer on whether a particular use is a fair use is to have that question resolved in federal court.
The best fair use decisions are made based on experience and familiarity with a wide variety of examples. While still building the knowledge and skills to make a full fair use analysis, you can begin to recognize some uses you feel confident qualify as fair.
Given what you’ve learned so far about fair use, consider the following examples:
You can probably see how each of these would be likely to qualify as a fair use. As a heuristic, or shortcut, for recognizing uses that are almost certainly fair, you could ask yourself the following questions:
If you can answer “no” to all these questions, you’ll probably be able to confidently rely on fair use. If you’re not sure that the answer to one of these is “no,” your use may still be fair. While you’re building experience doing a full fair use analysis, the libraries can help you think through the details of your fair use decisions.