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Copyright and Fair Use: Fair Use

Four Factors of Fair Use: A Refresher

Fair use is an exception to copyright codified at Section 107 of the Copyright Act. Under fair use, you may use copyrighted material without permission. The fair use statute allows for uses of a work when for purposes such as criticism and commentary (quoting a few lines from a book in a book review; teaching, scholarship, and research (copying a few paragraphs, with citation, from a news article for use by a professor in a class) and news reporting (replaying a small part of a taped concert in a news segment about the artist's performance).

The four fair use factors help determine if your potential use is fair:

Factor 1: Purpose - Purpose & character of the use.
Favors: Nonprofit, educational, scholarly or research use or a "transformative use" 

Factor 2: Nature - The nature of the copyrighted work.
Favors: Published works over unpublished works. Creative works have more protection than factual ones; the more creative a work, the less likely the use will be considered fair.

Factor 3: Amount - Amount & substantiality of the portion used in relation to the copyrighted work as a whole.
Favors: Small or less significant amounts or using only the amount needed for a given purpose. Both a quantitative and qualitative factor.

Factor 4: Market - Effect of the use upon the potential market for, or value of, the copyrighted work.
Favors: Not possible to obtain permission or there is little to no market effect. If licensing permission exists for the use, this may lean away from a fair use.

Courts occasionally boil down the four fair use factors to these two questions:
1) Does the use transform the material, by using it for a different purpose?
2) Was the amount taken appropriate to the new purpose?

Dispelling Fair Use Myths

What I am doing is educational, therefore it is fair use.

Just because your use is for a non-profit educational purpose does not automatically give you permission to copy and distribute other people's work.  'Educational purpose' is only one of the four factors relating to a fair use determination. To decide whether a use is a fair use, the effect on the market, the amount used, and the nature of the work must also be taken into consideration.

I am not making any money from the use, therefore it is fair use.

Effect on the market is only one of the four factors relating to a fair use determination.  Whether or not you are making money does not matter so much as whether you are replacing the market for the item, for example if people can view your item instead of having to purchase it.  To decide whether it’s a fair use, the effect on the market must be taken into consideration along with the other three factors: amount used, the purpose of the use, and the nature of the work.

If I am making money from the use, it cannot be a fair use. 

Even commercial uses can be fair use. It’s all about the balance and weighing the four factors to come to a conclusion.  If other factors are in favor of a fair use, it may balance the fact that you intend to make money from the use.

So long as I am not using something that is entertaining, it can be fair use. 

Copyright is concerned with originality, not quality.  Whether it’s high artistry or low budget B movies, anything that is an original and tangible creative expression receives copyright protection according to U.S. law.

As long as I provide proper attribution for a use, I do not need to seek permission.

Attribution is a matter of ethics and responsibility, but it has no bearing on a fair use assessment.  To determine whether you have a fair use, you will need to go through the four factors assessment according to your intended use.   

So long as I only use a screenshot or a still from a film it will always be fair use. 

Even the smallest bit of a work including screenshots or stills can have copyright. There is still copyright in small portions of a work. You must make your own fair use assessment of the little bit you want to use. It may be a fair use to use a screenshot or still - but you still need to look at each use in light of all four factors and the overarching purpose of fair use.

I only copied 10% so it must be fair use.

There are no "bright line" rules for fair use; guidelines are not the law. A small amount could be the heart of the work and not fair use. There are no numeric rules, and that's a good thing--you'll want always to have the right to exercise judgment on what amount/which content you might need to use within your work.

If it is fair use in the classroom, then it must be fair use to use it online.

There are different facts to consider when copying materials for online use, particularly when considering use of media or other visual works online. A fair use analysis must be conducted for online use same as for classroom use.

Fair Use Tools and Resources

Fair Use Scenarios

Common Scenarios

We will next examine the fair use merit for different types of copyrighted works used in the classroom.

Journal Article for Classroom Use

SCENARIO 1: A professor copies one article from a periodical for distribution to the class. FAIR USE? Yes. Distribution of multiple copies for classroom use is fair use. However, the repeated use of a copyrighted work, from term-to-term, requires more scrutiny in a fair use evaluation. Repeated use, as well as a large class size, may weigh against fair use.

Posting Copyrighted Article to Web Page

SCENARIO 2: A professor has posted his class notes on a web page available to the public. He wants to scan an article from a copyrighted journal and add it to his web page. FAIR USE? No, if access is open to the public, then this use is probably not a fair use. No exclusively educational purpose can be guaranteed by putting the article on the web, and such conduct would arguably violate the copyright holder's right of public distribution. If access to the web page is restricted, then it is more likely to be fair use.

Course Packs

SCENARIO 3: A professor copies excerpts of documents, including copyrighted text books and journals, from various sources. The professor plans to distribute the materials to his class as a coursepack. FAIR USE? Generally speaking, you need to obtain permission before reproducing copyrighted materials for an academic course pack. It's the instructor's obligation to obtain clearance for materials used in class. Instructors typically delegate this task to one of the following: clearance services, university bookstores or copy shops, or Department administration.

Textbooks

SCENARIO 4: A professor wishes to use a textbook he considers to be too expensive. He makes copies of the book for the class. FAIR USE? No. Although the use is educational, the professor is using the entire work, and by providing copies of the entire book to his students, he has affected the market. This conduct clearly interferes with the marketing monopoly of the copyright owner. The professor should place a copy on reserve or require the students to purchase the book. SCENARIO 5: A professor decides to make three copies of a textbook and place them on reserve in the library for the class. FAIR USE? No. This conduct still interferes with the marketing monopoly of the copyright owner. The professor may place a copy of the textbook, not the copies, on reserve.

Public Domain Materials

SCENARIO 6: A teacher copies a Shakespearean play from a copyrighted anthology. FAIR USE? Yes. The play is in the public domain and not subject to copyright protection.

Unpublished Letters

SCENARIO 7:A professor of psychology desires to edit and publish a collection of unpublished letters in the library archives. FAIR USE? The answer to this scenario requires further information. Has the copyright protection expired? Are the letters subject to any agreement the library made with the donor? Can the author or authors of the letters be located? Is the library agreeable to publication? This is the type of problem that requires a detailed legal and factual analysis. One should consult the institution's office of legal affairs for advice.

Journal Article for Personal Use

SCENARIO 8: A professor wishes to make a copy of an article from a copyrighted periodical for her files to use later. FAIR USE? Yes. This is a classic example of personal fair use so long as the professor uses the article for her personal files and reference.

Out-of-Print-Book

SCENARIO 9: A library has a book that is out of print and unavailable. The book is an important one in the professor's field that she needs for her research. The professor would like to copy the book for her files. FAIR USE? Yes. This is another example of personal use. If one engages in the fair use analysis, one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out of print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source. SCENARIO 10: Using the same facts as explained in SCENARIO 10 could the professor copy the book and place the book on reserve in the library? Could the professor scan the book into her computer and place the book onto the World Wide Web? FAIR USE? If the professor placed the book on reserve in the library, the use would be considered a fair use. However, if the professor placed the book on the Web, then the use is not a fair use. Placement on the Web allows unlimited access to the book. This would affect the copyright holder's public distribution of the book.

Movies

SCENARIO 11: The library owns a film on DVD that is typically viewed each semester during class time; the DVD is held within the Reserves collection. This semester, the course in question will have two online sections and one on-campus section. The faculty member has asked the library whether a digital copy could be made available via the Learning Management System for the distance education students. The film is not currently available for the library to purchase a copy via its streaming media provider. FAIR USE? Maybe. Because the course in question is online, Fair Use must be considered in tandem with the TEACH Act, which specifically addresses distance education. Per Section 110(2) of the TEACH Act, our instructor would have to pare down the film to "reasonable and limited portions" to show them to the online students or make them available over the internet to face-to-face students. Each individual institution must decide for itself the definition of reasonable and limited.