Copyright & Fair Use: Fair Use

In the teaching context, it may be useful to take the following steps to help qualify a use as fair and protect yourself and the University from infringement liability:

• When using third party material, perform a fair use analysis in good faith;
• Copy as little of the material as you can and still make the use you need;
• In an on-line setting, first check to see if the University Libraries has a license to the material; you may be able to point students to the material in an accessible database;
• Consider placing material in a password-protected environment that is available only to those enrolled in the class and terminate the students’ access to the material when class is over;
• Link to the material instead of copying it whenever possible;   
• If the use cannot be considered fair, ask the copyright holder for permission to use it.

Review these Common Scenarios to help you determine whether or not fair use is appropriate

Fair use is a doctrine under copyright law that permits certain uses of a work without the copyright holder’s permission.  The fair use of a copyrighted work is an exception to the exclusive rights of a copyright holder. Fair use may be made of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.  However, the use of a work for one of these purpose does not automatically qualify as a fair use:  a nuanced analysis weighing four factors must be done for each factual scenario.

Fair Use Factors

The copyright statute states that the following four factors must be evaluated to determine in whether a use is fair:   

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.

No one factor is dispositive.  Fair use is a flexible balancing test that is difficult to define apart from the specific factual circumstances in which it has been applied by courts.  Be wary of fair use “scales” that attempt to assign a weight to each factor to be weighed against the others; the doctrine requires determining fairness on the whole in the particular context.

Explanation of Each Factor:

Purpose and character of the use
Consider: is the use educational or commercial? Is it a non-profit use or a use for profit? Is the use transformative or iterative?

• Educational use does not automatically render a use fair; this is just one helpful factor.  For example, note that many materials are created specifically for the educational market and fair use cannot be relied upon to make these works “free.”
• Many recent cases have centered on whether the use is transformative or iterative, with transformative use more likely to be considered fair. Transformative uses include such use of portions of a work in parodies or thumbnail images that reproduce a full–sized image but for a different purpose, such as a search engine.
• Many educational uses are iterative in that they require the use of exact copies, which is usually less defensible than the use of limited portions of a work for a new purpose or in a new way.
• The more transformative a use is, the less likely it is to negatively affect the market for the original work, the fourth fair use factor.

Nature of the copyrighted work
Consider: is the work published or unpublished? Is it factual or creative?

• Unpublished works generally receive greater protection because the courts consider the copyright holder’s right to first publication.  The fact that a work is unpublished does not bar a finding of fair use, but it makes the other factors more important.
• The more creative a work is, the stronger the copyright.  Purely factual data such as phone numbers do not receive copyright protection, but the selection and arrangement of factual data with some modicum of originality may.

Amount and substantiality of the use
Consider: how much of the work are you using?  How important is the portion you are using to the work as a whole?

• Using a smaller portion of a work is more likely to qualify as a fair use, though there are no rigid page number or percentage guidelines in the statute.
• This factor is analyzed qualitatively as well as quantitatively: a small amount of the work may be too much if it reproduces “the heart of the work.”

Impact on the market
Consider: how many copies are being made and how widely will they be distributed? Is the use spontaneous or is it repeated? Is the original for sale or license?

• A use for which there is a clear market or licensing mechanism is less likely to be fair than the use of a work for which there is no market or ckear potential market.
• Making numerous copies of a work weighs against a fair use finding; digital reproduction exacerbates this factor because digital copies are easier to copy and disseminate widely.
• The Supreme Court has stated that this factor is the most important, and the analysis of some of the other factors often lead to a market analysis.