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Copyright: Fair use

What is fair use?

Fair use of copyrighted works is a limitation on the exclusive rights of copyright holders and is not an infringement on copyright law. Fair use helps preserve First Amendment rights of free speech and promote conversation for purposes such as "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" (Section 107, Copyright Law of the United States).

Fair use four factors

The following four factors must be evaluated to determine whether a use is fair:

  1. The purpose and character of a use (Is the use educational or commercial? Is it a non-profit use or a use for profit?)
  2. The nature of the copyrighted work ( Is the work published or unpublished? Is it factual or creative?)
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole (How much of the work are you using? How important is the portion you are using to the work as a whole? Is the portion you are using "the heart of the work?")
  4. The effect of the use upon the potential market for or value of the copyrighted work (How many copies are being made and how widely will they be distributed? Is the use spontaneous or is it repeated?)

No one factor is decisive - all four factors must be considered.

Fair use "fifth" factor - transformative use

If you use an existing copyrighted work in completely new or unexpected ways, your use may be considered as transformative and thus fair use, even when all four of the factors would traditionally weigh against fair use. 

Examples of transformative use include: 

  • Parody
  • Commentary
  • Criticism

To determine whether your use is transformative, ask yourself these three questions:

  1. Does the copyrighted material help me make my new point?
  2. Will it help my readers or viewers get my point?
  3. Have I used no more than is needed to make my point? 

(adapted from © 2014 Kevin Smith & Lisa Macklin (CC BY-SA 4.0)

Fair use tools