What is Fair Use?

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 the copyright holder. Fair use allows limited use of copyrighted material without permission, such as criticism, parody, news reporting, research and scholarship, and teaching.

However, these purposes does not automatically qualify the use of the copyrighted material as fair use. Four factors are used to help determine whether or not a use is fair:

1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted material as a whole
4. The effect of the use upon the potential market for or value of the copyrighted work

Graphic by Megan Pritcher

It is important to note that all the factors work together in balance. Lack of one factor is not likely to disqualify a use for fair use. A use may contain elements of all factors and still not qualify as fair use.

Amount and Substantiality of the Use

Regarding this factor of fair use, ask yourself these questions. How much of the work am I using? How important is the portion I am using to the work as a whole?

• Small amount vs. Large amount - Using a smaller amount of the work is generally better for qualifying for fair use. However, there are no set bright lines or absolute limits on how much of a work may be considered fair use in the law. It all depends on what you use from the work.
• Quantity vs. Quality - How much you use is important, but if a small amount that you use includes the so-called 'heart of the work" then you may weigh against fair use. Small portions may exceed fair use is the most notable or creative aspects of a work is used.

​Impact on the Market

The final consideration is whether the use results in economic harm to the creator or copyright owner. The Supreme Court has stated that this factor is the most important, and the analysis of some of the other factors often lead to market analysis. Some questions to ask are how many copies are being made and how widely will they be distributed? Is the use spontaneous? Is the original for sale or license?

• Clear Market vs. Licensing - 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 clear potential market.
• Number of Copies - Making numerous copies of a work weighs against fair use; digital reproduction intensifies this factor because digital copies are easier to copy and disseminate widely.

Purpose and Character of the Use

Generally, educational, nonprofit, and personal uses are favored as fair use. Some good questions to ask yourself is the use educational or commercial? Is it a non-profit? Is the use transformative or iterative?

• Education vs. Commercial - Making commercial use of a work typically weighs against fair use, but it does not automatically defeat a fair use claim. Same goes for education. Many materials are created specifically for the educational market and fair use cannot be relied upon to make these works "free."
• Transformative vs. Iterative - Transformative use of the work is generally more likely to be considered fair. Transformative uses include use of portions of a work in parodies or thumbnail images that reproduce a full-sized image but for a different purpose. The more transformative the use is, the less likely it is to negatively affect the market for the original work.

Nature of the Copyrighted Work

Published works and factual, non-fiction works are more likely to qualify for fair use. Some good questions to ask yourself is the work published or unpublished? Is it factual or creative?

• Unpublished vs. Published - Unpublished works are more likely to weigh against fair use, as the courts consider the copyright holder's right to first publication. This does not bar it from fair use, but it makes the other factors even more significant. 
• Factual vs. Creative - The more creative the work, the stronger the copyright. This is because the law seeks to provide maximum protection to a creator's artistic effort. Purely factual data do not receive copyright protection, but the selection and arrangement of factual data with some medium of originality may.

The TEACH Act

The TEACH Act, 17 U.S. Code § 110 (2), was signed into law in 2002. It expands the scope of educators' rights to perform and display works and to make the copies integral to such performances and displays for digital distance education, making the rights closer to those we have in face-to-face teaching. The TEACH Act requirements checklist can guide decisions on copyright compliance for courses. If a specific use of a copyright-protected work does not fit within the TEACH Act, the use of the work may fall within Fair Use, or permission to use the work must be obtained from the copyright owner.

• TEACH Act Checklist - This is a link to the TEACH Act checklist on the University of Texas's website