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Copyright

Fair Use Guidelines

Fair use allows certain uses of copyrighted material without permission from the copyright holder. There are four factors to consider when determining whether your use is a fair one. You must consider all the factors, but not all the factors have to favor fair use for the use to be fair.

The four fair use factors are

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

Fair use favors “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, [and] research.” While many uses for educational purposes are fair, not all are. You need to evaluate your use each time you are reproducing copyrighted material — to show in your class, to hand out copies, to include in your writing, or to post on your course website.

Fair use is codified at 17 U.S.C. § 107.

Content courtesy of University of Michigan Libraries.

Understanding the Four Factors:

"The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes"

  • Uses that fall under one of the favored purposes listed in the fair use statute (17 U.S.C. § 107) or have a nonprofit educational purpose will weigh in favor of fair use. Favored purposes include scholarship, research, criticism, and comment.
  • Uses that are commercial weigh against fair use, while uses that are noncommercial weigh in favor of fair use.
  • Uses that are transformative weigh in favor of fair use. A use is transformative when the use adds new meaning or message to the original work, giving it a new purpose. For example, imagine you are writing a scholarly article about the impacts of advertising directed to children. You include a toy advertisement and analyze how it reached a child audience. The original purpose of the advertisement was to increase demand for the toy, while your purpose is for scholarship and critique, making your use transformative. Quoting another scholar's analysis of the advertisement would not necessarily be transformative, though it is still often fair use.

"The nature of the copyrighted work"

  • If the work used is creative, that will weigh against fair use. If the work used is factual, that will weigh in favor of fair use. The outcome of this subfactor varies depending on the work used.
  • If the work used is unpublished, that will weigh against fair use. However, the fair use statute explicitly states that the unpublished nature of a work will not bar fair use if the use is otherwise fair. The outcome of this subfactor varies depending on the work used.

"The amount and substantiality of the portion used in relation to the copyrighted work as a whole"

  • Using all or much of the original work will weigh against fair use. The outcome of this subfactor varies depending on the use.
  • Using the most important part of the original work (the "heart") will weigh against fair use, even if it is only a small amount of the work. The outcome of this subfactor varies depending on the use.
  • The third factor is neutralized if the amount used is necessary for a transformative purpose, even if the entire original work is used. For instance, the third factor would be neutralized in the use of the toy advertisement described above — all of the advertisement has to be used in order to achieve the transformative use.

"The effect of the use upon the potential market for or value of the copyrighted work"

  • Uses that decrease demand for the original work by providing a substitute will weigh against fair use.
  • Uses that decrease demand for the original work by criticizing it (as with a negative film review) have no impact on the fourth factor.
  • If the licensing market for the use you are making is "traditional, reasonable, or likely to develop," that will weigh against fair use.

Challenges to Fair Use

This report summarizes research into the current application of fair use to meet the missions of U.S. academic and research libraries. Sixty-five librarians were asked about their employment of fair use in five key areas of practice: support for teaching and learning, support for scholarship, preservation, exhibition and public outreach, and serving disabled communities.

Interviewees reported a strong commitment to obeying copyright law; rarely concerned about their own liability, librarians primarily felt responsible for ensuring their institutions were in compliance with the law. Practice varied considerably, from a rigid permissions culture to ample employment of fair use.

Beyond Fair Use

Other than under fair use, am I allowed to use this work in my classroom?

US copyright law permits teachers and students to make certain uses of copyrighted works in face-to-face teaching. As a teacher or student, you are allowed to perform or display a copyrighted work without permission in “a classroom or similar place devoted to instruction” during face-to-face teaching at a nonprofit educational institution.

If the work is a motion picture or other audiovisual work, you must use a copy of the work that was lawfully made.

This is codified at 17 U.S.C. § 110(1).

Other than under fair use, am I allowed to use this work in an online or distance learning class?

US copyright law gives teachers the right to use works for distance learning without permission under certain circumstances.

If you

  • are, or are acting under direction or actual supervision of, an instructor in a class session offered by an accredited nonprofit educational institution or governmental body;
  • are using the material as an integral part of a class session;
  • are using the material that is directly related to and of material assistance to your teaching content;
    and
  • are using a copy of the work that was prepared lawfully,

and the copyrighted work

  • was not “produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks;” and
  • will be transmitted solely to students officially enrolled in the course for which the transmission is made or officers or employees of governmental bodies as a part of their official duties or employment,

and your use is:

  • performing a nondramatic literary work (e.g., reading a short story aloud);
  • performing a nondramatic musical work (e.g., singing a song);
  • performing a reasonable and limited amount of any other work (e.g., playing an excerpt from a movie); or
  • displaying any work in an amount comparable to what would be used in a live classroom,

and your institution

  • institutes a copyright policy;
  • provides information about copyright to faculty, students, and relevant staff members;
  • provides notice to students that materials used in connection with the course may be subject to copyright protection; and
  • if the transmission is digital, applies the required technological measures,

then US copyright law permits your use.

This provision, which is sometimes called the TEACH Act, is codified at 17 U.S.C. § 110(2).

Content courtesy of University of Michigan Libraries.