How is Fair Use tied to Copyright? Section 107 of the Copyright Act of 1976 provides the media, educators, researchers and others with limited Fair Use rights to copy and use portions of copyrighted works without violating copyright. It promotes social benefit and is vital to the growth of knowledge. As Supreme Court Justice Sandra Day O’Connor observed in Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991), the primary purpose of copyright is to “build freely upon the ideas and information conveyed by a work…It is the means by which copyright advances the progress of science and art.” In other words, Fair Use of copyrighted works favors progress. A recent study of the Computer and Communications Industry Association found that Fair Use adds to U.S. economic growth, contributing one-sixth of GDP.[i] However, Fair Use does not mean unlimited use.

Fair Use allows flexibility favoring the public’s limited use of copyrighted works without permission from the author. There are four Fair Use factors one must review in accessing whether the limited use is Fair Use. Each scenario must be evaluated on a case-by-case basis, balancing these four factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; NOTE: if the copyrighted work is being used for a different purpose than that of the original, it may be a transformative use. Examples include quotations incorporated in a report or multimedia mash-ups included in commentary or criticism.
  2. the nature of the copyrighted work, factual versus creative;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the market effect of the use of, or value of, the copyrighted work.

When at least three of the four factors favor Fair Use, then more than likely the scenario is a Fair Use. 

The below graphic is explained by the above text.
Fair Use chart Image Source: Carrie Russell's Complete Copyright


When the factors are evenly split, you must decide whether it is worth the risk or not. See Checklist For Conducting A Fair Use Analysis Before Using Copyrighted Materials @ https://copyright.cornell.edu/policies/docs/Fair_Use_Checklist.pdf  on how to handle factor analysis when evenly split. You might contact your organization’s legal counsel. If still in doubt, ask for permission. When less than half of the factors favor Fair Use, then definitely authorization should be obtained. Fair Use applied to your specific situation may vary depending on the type of use, as well as the type of user, e.g. educational versus commercial use. 

For more about Fair Use see Understanding Fair Use within our section on Using Works of Others. Also, the original source of the Fair Use checklist by Kenneth Crews and Dwayne Buttler is found at Columbia University Libraries' Copyright Advisory Office @ http://copyright.columbia.edu/copyright/fair-use/fair-use-checklist/.

[i] Computer and Communications Industry Association, “Fair Use Economy Represents One-Sixth of U.S. GDP,” September 12, 2007 press release, https://www.ccianet.org/artmanager/publish/news/First-Ever_Economic_Study_Calculates_Dollar_Value_of.shtml (accessed October 1, 2007).

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