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Copyright & Creative Commons: Fair Use

Basic information on Copyright and Creative Commons

Fair Use

Books and a laptop computer with the text Fair Use

The Four Factor Test

When determining Fair Use consider the four factors:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken
  • the effect of the use upon the potential market

 

Considering using this worksheet from the University of Minnesota Libraries to help you think through whether your use counts as Fair Use or not: https://www.lib.umn.edu/copyright/fairthoughts.

What is Fair Use?

If you want to use material that is still under copyright, depending on how you use it and how much of it you plan to use, you may be allowed to do so under a principle called Fair Use. The public should be free to use portions of copyrighted materials for the purpose of commentary and criticism in particular. There are no hard and fast guidelines that determine fair use. Courts use four factors to determine whether a use is a fair use or not on a case-by-case basis. 

Factor 1: The Purpose and Character of Your Use
Have you transformed the work in any way? Have you added new meaning or insight on the work? Are you offering critique or commentary? Uses that transform the original in some way are usually considered a fair use. Distributing the work with minimal or no changes is often viewed as copyright infringement.

Factor 2: The Nature of the Copyrighted Work
Has the work already been published or distributed? Is the work more creative or more factual reporting? Works that have never been published are usually granted more protection because the creator should have control of the first distribution. Sharing works that are based on facts are more likely to be viewed as a fair use than sharing creative works. 

Factor 3: The Amount and Substantiality of the Portion Taken
How much of the original work do you want to use? The less you use the more likely it is that your use would be considered a fair use. However, even small portions, if they are considered to be the "heart of the work" can be seen as a copyright violation. 

Factor 4: The Effect of the Use Upon the Potential Market
Will your use deprive the creator of income? If so, your use will very likely be considered a copyright infringement.

You must consider all four factors together, none weigh more heavily than any other.

It is also good to remember that making some sort of disclaimer will not magically transform your use into a fair use. It doesn't matter if you say that you don't own the content or that you do not mean to infringe. 

If you have further questions about Fair Use please contact a librarian for assistance.