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:
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?
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?
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?
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 Some good questions to ask yourself is the work published or unpublished?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?
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.
218 College Street • PO Box 32026 • Boone, NC 28608