What is fair use?

Fair use is a legal exemption to the exclusive rights of copyright holders (17 U.S.C. §107). It allows for certain uses of materials without either asking permission from the copyright owner(s) or infringing copyright. Fair use is determined on a case-by-case basis and is based on a consideration of four factors:

1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion to be used
4. The effect upon the potential market for the copyrighted work

Fair use interpretations are nuanced. Fair use decisions are also determined by the current situation. This means that fair use evaluations ought to be made for each new or modified use of copyrighted materials. Only the user ought to make an initial assessment for whether their use is fair. 

Here are brief, simplified descriptions of each of the four factors that should be considered with fair use. These are not intended to be exhaustive or complete descriptions of each factor.

The Purpose and Character of the Use

The first factor specifically includes and may lean towards "nonprofit educational purposes." However, not all "educational" uses of copyrighted materials will still be a fair use; all four factors should be considered. This factor also favors transformative use. Parody, criticism, and commentary are all common examples of this.

The Nature of the Copyrighted Work

The second factor weighs published versus unpublished works and factual versus highly creative works, leaning towards the former. 

The Amount and Substantiality of the Portion Used

The law does not include set word or chapter counts or percentages of what amount of a copyright work is allowed under fair use. Instead, the user should consider if the copied amount is appropriate for the use. Typically shorter excerpts will be more favorable, though this is not always the case. 

The Effect of the Use on the Market

The fourth factor considers potential impacts on the market for the original work, including availability of licensing. Considerations from the first three factors may come into play here, such as a transformative use and the amount used. 

There are some situations where you may not need to rely on fair use. These are also options to explore if your intended use of copyrighted material does not fall into fair use.

1. Is the work covered by copyright?
   • If the work is in the public domain, it is not covered by copyright.
2. Are there other exceptions or limitations in copyright law that may apply? 
3. Is the work already licensed in a way that would allow for the use?
   • Creative Common licenses are one example of open licenses that allow for a variety of reuses.
4. Can you ask for permission to use the work?
   • See the "Permissions and Licensing" section of this guide for more information.