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Follow the Four Factors of Fair Use

This short video, produced by The Ohio State University Libraries, provides a good example of how to do a fair use analysis.

Fair Use

The fair use exemption is most likely the exemption that most educators and scholars are familiar with.  It is codified in Section 107 of the US copyright law and states:

". . .the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- 

  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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

For a basic overview, take a look at Fair Use Fundamentals, a summary document commissioned by the Association for Research Libraries.  Fair use is a balancing act and is highly dependent on the facts in each situation.  All 4 factors must be considered in any fair use analysis -- none is more important than the other.  Any parameters that have evolved around fair use have been the outcomes of court decisions.  Many institutions have developed checklists to guide users through fair use analysis.  Regarding the two such tools identified below, one was developed at Baylor University and the other is an interactive tool developed by the American Library Association:

  • Fair Use Checklist -- A PDF that can be completed, saved, and printed, developed by Baylor University and based on checklists developed at other institutions.
  • Fair Use Evaluator -- Interactive tool that guides you through a fair use analysis and provides a PDF record of the reasons for the decision, developed by the American Library Association.

Two important concepts to be considered in any fair use analysis are "transformation" (1st factor) and "heart of the work" (3rd factor):

  • Transformation -- Related to the first factor (purpose and character of the work), more and more court opinions are focusing on the transformative nature of the use of a copyrighted work.  In considering transformation, ask yourself the following questions, suggested by Kevin Smith:
    1. Will the incorporation of the copyrighted material into my new work help me make my new point?
    2. Have I used no more of the copyrighted material than is necessary for me to make that point?  (A "Goldilocks" test -- not too much and not too little.)
    3. Will the incorporation of the copyrighted material help my readers/viewers "get" my point?
  • Heart of the Work -- Related to the third factor (amount and substantiality), even if you are using only a very small amount of a copyrighted work, how significant is that content you are using?  Does that small amount of content represent the essence of the copyrighted material? If so, the use may not be a fair use.

Although there are no clear, bright lines associated with fair use, a number of organizations have developed guidelines or best practices, which are available from the Center for Social Media:

The creators of these best practices investigated how educators and scholars in the specific environments fairly use copyrighted content and from those environmental scans they identified the practices that were most common among all of them to develop the disciplinary-specific guidelines.

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