Fair use allows certain uses of copyrighted material without permission from the copyright holder. There are four factors to consider when determining whether your use is a fair one. You must consider all the factors, but not all the factors have to favor fair use for the use to be fair.
The four fair use factors are
Fair use favors “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, [and] research.” While many uses for educational purposes are fair, not all are. You need to evaluate your use each time you are reproducing copyrighted material — to show in your class, to hand out copies, to include in your writing, or to post on your course website.
Fair use is codified at 17 U.S.C. § 107.
Uses that fall under one of the favored purposes listed in the fair use statute (17 U.S.C. § 107) or have a nonprofit educational purpose will weigh in favor of fair use. Favored purposes include scholarship, research, criticism, and comment.
Uses that are commercial weigh against fair use, while uses that are noncommercial weigh in favor of fair use.
Uses that are transformative weigh in favor of fair use. A use is transformative when the use adds new meaning or message to the original work, giving it a new purpose. For example, imagine you are writing a scholarly article about the impacts of advertising directed to children. You include a toy advertisement and analyze how it reached a child audience. The original purpose of the advertisement was to increase demand for the toy, while your purpose is for scholarship and critique, making your use transformative. Quoting another scholar's analysis of the advertisement would not necessarily be transformative, though it is still often fair use.
If the work used is creative, that will weigh against fair use. If the work used is factual, that will weigh in favor of fair use. The outcome of this subfactor varies depending on the work used.
If the work used is unpublished, that will weigh against fair use. However, the fair use statute explicitly states that the unpublished nature of a work will not bar fair use if the use is otherwise fair. The outcome of this subfactor varies depending on the work used.
Using all or much of the original work will weigh against fair use. The outcome of this subfactor varies depending on the use.
Using the most important part of the original work (the "heart") will weigh against fair use, even if it is only a small amount of the work. The outcome of this subfactor varies depending on the use.
The third factor is neutralized if the amount used is necessary for a transformative purpose, even if the entire original work is used. For instance, the third factor would be neutralized in the use of the toy advertisement described above — all of the advertisement has to be used in order to achieve the transformative use.
Uses that decrease demand for the original work by providing a substitute will weigh against fair use.
Uses that decrease demand for the original work by criticizing it (as with a negative film review) have no impact on the fourth factor.
If the licensing market for the use you are making is "traditional, reasonable, or likely to develop," that will weigh against fair use.
No. Having an educational purpose weighs in favor of fair use. However, it can still be outweighed by the other fair use factors and subfactors.
If any of the facts that impact the fair use analysis change, you should reassess fair use. For instance, the scope of fair use is broader if there is no way to license or purchase copies of a work. If copies or licenses become available, you should do a new fair use analysis.
In general, limiting access to the work will improve the fair use case. If possible, limit access to materials on your course website to students and necessary course personnel. Also, when appropriate, consider limiting the length of time a work is available on the course website in order to improve the fair use case.
Sometimes. Whether fair use permits you to copy any particular work or a portion of a work for use on your course website has to be determined case by case based on the fair use factors. If the library resource you want to use is a licensed electronic resource, such as an ebook or an article database, your use of the item will depend on contractual terms in addition to fair use.
In general, it is best to link to those licensed items instead of posting copies on your course website. If you need to use a licensed resource in a way that is not permitted by the license, contact a relevant library subject specialist. These librarians can help you obtain library resources for your course. For example, a subject specialist may be able to buy a license for an ebook that allows a greater number of simultaneous users.
First, note that being out of print is not the same as being in the public domain. If you believe the work is in the public domain, you may wish to consult the public domain resources elsewhere in this guide before making a fair use analysis.
For in-copyright works, being out of print and unavailable for licensing will weigh in favor of fair use. Specifically, it will improve the fair use case under the fourth factor. However some uses of out-of-print and unlicensable works would not be fair. Be sure to consider all of the fair use factors when making your analysis.
Using less of a work will generally improve your fair use case. However, there is no fixed percentage below which all uses are fair. Some uses of small amounts of works are not fair. Conversely, it can be fair use to use the entire work in some cases. Be sure to consider all of the fair use factors when making your analysis.
It is not necessary to document your fair use analysis in order to rely on it later in court. However, keeping notes on your fair use decisions can make it easier to review them. That may be helpful if you want to review fair use decisions made by others (e.g., department staff and graduate student instructors) or if you will be using a work again and need to review your own fair use decision.
If you want to record your fair use analysis, we recommend the Fair Use Checklist from the Columbia Copyright Advisory Office. The Fair Use Checklist is also helpful as a guide for those who are learning to apply fair use.