Open Educational Resources

What is Fair Use?

Fair use seeks to balance the exclusive rights of copyright owners and the needs of others to use copyright-protected works.  To determine whether a use is fair, judges consider (and lawyers argue) four factors, which are codified in 17 USC §107.  The fair use doctrine is deliberately flexible.  Each situation must be evaluated individually. 

The only people who decide whether a use is fair are federal judges—after a dispute is argued before them. Previous fair use decisions give us guidance about how to interpret the four factors.  Yet nobody can tell us in advance whether a use is fair.  We must use our best judgment in evaluating fair use. 

The Four Factors

Fair use is determined by considering these four factors. No single factor determines the outcome; all must all be weighed to reach a decision. Think of each factor as a sliding scale from unfair to fair. 

Purpose and character of the use

Nonprofit uses with social benefit are favored.  Teaching, scholarship, research, news reporting, criticism, and comment are mentioned in the law as favorable purposes. 

Judges also favor uses they consider to be transformative, which is interpreted to mean either:

• the copyright-protected work is used in a new creation that is not merely a reproduction of the original work, for example using portions of a picture in a collage
• the work is used in a new way that the owner would not have brought about, for example creating a parody or scanning books into a database that allows word searches but does not display large passages of text  

It is not favored if a work is used for the same purpose for which it was originally made available. For example, if a feature film is used for entertainment purposes.

Nature of the work used

Highly creative works, such as films, novels, and songs, are more protected than highly factual ones.

Amount of the work used

Judges consider how much of a work was used and whether the portion used was the heart of the work—the juicy part everyone wants to read, hear, or watch. They evaluate these in light of the purpose of the use: are the amount and substance of the portion used necessary for the purpose?  For example, it is fair for Google Books to scan entire books to allow them to be searched for word matches (which is a transformative use under factor one). However, it was not fair for a newspaper to print the most anticipated part of a biography without permission, even though that portion was very small (approximately 300 words).

Effect on the market for or value of the work used

If a copyright owner would lose revenue because of a use, that use is not likely to be fair.  Also, judges consider not just the use at issue, but whether widespread similar uses would harm the market for the original.

Sources