Library Support for Faculty: Fair Use

Fair use is a part of the US Copyright Law (U.S.C. 17 §107) that sets forth limitations on the exclusive rights of copyright holders.

This means that under certain circumstances you do not have to seek permission or pay a fee to use copyrighted materials.

There are four factors to be considered when determining whether a particular use may be considered fair.

A fair use evaluation must be actively conducted by weighing the four fair use factors for each individual case.

• Always conduct a fair use analysis by examining all four of the factors.
• Educational use does not automatically indicate a use fair. This is one factor.
• Use the smallest possible portion of the work.
• Copies/scans must be made from legally owned originals.
• Materials secured through Interlibrary Loan are borrowed, not owned.
• In the case of electronic postings, access should be removed as soon as the semester concludes.

Determining fair use requires a case-by-case assessment of each circumstance giving careful consideration to all four of the fair use factors.

Use this Fair Use Checklist to help evaluate each use.

The purpose and character of the use

• Is the use for education purposes or other noncommerical use?
• Is the use of a transformative nature?

 These types of uses are favored under fair use.  Uses of a commercial nature usually would not be considered fair.

The nature of the work.

• Is it primarily factual or of a creative nature, such as a work of fiction?
• Is it a published work? 

 It is easier to show fair use with factual works than with creative works. Use of unpublished works is unlikely to be seen as fair.

The amount and substantiality of the portion being used.

• How much of the work, in relation to the whole, is being used?
• Is the portion being used considered the key portion or heart of the work?

 The less used the better under fair use.  Usage of key or main concept portions is often declared unfair use.

The effect of the use on the potential market for or value of the work.

• Does the use deprive the copyright owner of income or undermine a new or potential market for the copyrighted work?   

 Depriving a copyright holder of income usually weighs against a finding of fair use.