Fair use is a legal doctrine that allows certain limited uses of copyrighted material without getting permission from the copyright owner. Common practices that rely on fair use are criticism, parody, news reporting, teaching, scholarship, and research. Section 107 of the U.S. Copyright Act, states that four factors should be taken into consideration when determining if your use is fair.
The first factor mostly focuses on whether the use is commercial and whether the use is transformative. If a use is commercial it is less likely to be fair use and if it is non-commercial it is more likely to be fair use. Transformative uses add something new, with a further purpose or different character, and do not substitute for the original use of the work. If the use is transformative it is more likely to be fair use, and if it is not transformative it is less likely to be fair use.
The second factor focuses on how creative the original copyrighted work is. The more creative a copyrighted work is the less likely there will be a finding of fair use, but when the work is more factual it favors a fair use finding. This factor also looks at the publication status of the copyrighted work. When the copyrighted work is unpublished the use is less likely to be fair.
The third factor considers the amount of the copyrighted work that was used compared to the copyrighted work as a whole. When the amount used is very small in relation to the whole copyrighted work, this factor will favor fair use, but where the amount used is significant, this factor will favor the copyright owner. This factor also considers the qualitative amount of the work used. If the portion used was the “heart” of the work, this factor will likely weigh against fair use even if that portion was otherwise a very small amount.
The fourth factor not only considers whether the defendant’s activities may harm the current market, but also considers whether the use may cause harm to potential markets that could be exploited by the copyright owner if the use were to become widespread. If the use harms the copyright owner’s current or potential market then it will weigh against fair use. Along with the first factor, this factor is one of the most important in the fair use analysis.
Sometimes it is obvious when fair use applies, such as using short quotes in your research paper, but often it is not that clear. If you are unsure, you can start by thinking through each of the four factors and how it applies to your situation. Remember that the four factors are not yes/no questions. How the factors apply, and how important each one is, depends on the unique circumstances of your use.
There are tools that can help you determined fair use, and some can provide proof that you did a fair use analysis. Good faith effort - such as a fair use analysis, or search for a copyright owner - are considered if you ever have to defend your use. Having proof can be valuable in those cases.
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