Fair Use is a flexible doctrine from Section 107 of the U.S. Copyright Law in Title 17 of the USC (U.S. Code). It allows limited and legal use of copyrighted works without permission or payment. “Fair Use provides a broad but vaguely defined defense against copyright infringement.”[i] It developed “as a way to balance the monopoly of copyright with the free speech goals of the First Amendment.”[ii] The monopoly is a set of exclusive rights (Title 17 Section 106) granted to a copyright owner which include the right to authorize others to reproduce, distribute, publically perform or display, and create derivative works of their copyrighted work. Fair Use places limitations on a copyright owner’s exclusive rights. Thus, under the spirit of the U.S. Constitution, it balances the rights of the copyright owner and the need for the public to reproduce, distribute, publically perform or display, and create derivative works in LIMITED situations which support advancing knowledge or communicating ideas. This is especially true for teaching and criticism or to serve other important social objectives, e.g. education, research, news reporting, and commentary. However, Fair Use does NOT mean unlimited use.
The U.S. Copyright Office states that: Fair Use contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. The distinction between fair use and infringement may be unclear and not easily defined…There is no specific number of words, lines, or notes that may safely be taken without permission.[iii]
The Fair Use Statute allows us to copy limited amounts of copyrighted works, especially for educational or personal uses. Although not impossible, Fair Use applies less often for commercial applications. When considering whether one’s personal or educational use of a copyrighted work is a Fair Use (Section 107), one should ask themselves the following questions:
a. What is your PURPOSE for the copyrighted work? Is it educational or personal? Or is it commercial and for-profit? If it is educational or personal, more than likely it is a Fair Use. This is especially true for educational or personal mash-ups where the user of a copyrighted work adds value to the use of a work for a purpose different from what the work was originally intended. The courts and attorneys call this “transformative use,” and it often favors Fair Use. For more on transformative use see http://fairuse.stanford.edu/overview/fair-use/four-factors/
b. What AMOUNT of the copyrighted work is used? The more you copy, the less likely it is permitted as Fair Use. For example, if you copied an entire three-minute popular song to insert into a multimedia slide show, that may not qualify as Fair Use. Using a smaller portion is more likely Fair Use. However, music which is public domain or licensed for your educational or personal use could be used in full.
c. What is the NATURE of the copyrighted work? It is a factual book or is it a creative film or music? The more factual the material, the more likely your use is Fair Use. However, the more creative the material is, you may need to use as little as possible to qualify as Fair Use. Documentary films are more likely Fair Use than creative blockbuster entertainment movies.
d. What is the EFFECT on the market? Does you use of a copyrighted work substitute for what could have been purchased? In other words, does your use discourage others from purchasing an original copy? If you would copy part of someone else’s song and then try to make money from your new mash-up on YouTube, this may not be Fair Use.
NOTE: The official version of the Fair Use Statute is located @ http://www.copyright.gov/fls/fl102.html. See visual diagram below which better illustrates the four Fair Use factors described.
When making a Fair Use assessment, all four factors must be weighed and balanced. The defacto Fair Use checklist which is most often referred to was created by Kenneth Crews located at Columbia University Libraries' Copyright Advisory Office. Cornell University’s Fair Use checklist @ http://copyright.cornell.edu/policies/docs/Fair_Use_Checklist.pdf, based on the Fair Use review tool by Kenneth Crews, supports that when at least three of the four factors favor Fair Use, it is a justified Fair Use. When only one factor favors Fair Use, permission should be obtained. When the factors are evenly split, you need to make a judgment call.[iv] Obviously when none of the factors assessed favor your use, it is not a Fair Use. Intellectual property encourages creation of new literary, artistic, and informational works for the ultimate benefit of society.
For more on Fair Use, see Kenneth Crews' Copyright Law for Librarians and Educators: Creative Strategies & Practical Solutions (ALA, multiple editions), http://www.alastore.ala.org/pdf/9780838910924_excerpt.pdf. Also, see Summaries of Fair Use Cases site for more practical scenario examples by Nolo publishing and author Richard Stim. Here is the URL as of June 2013:
[i] Stephen McJohn, Copyright: Examples and Explanation, (New York: Aspen Publishers, 2006) page 241.
[ii] Kathleen Olson, “First Amendment Values in Fair Use Analysis,” Journalism & Communication Monographs, 5 (4) Winter 2004, page 188.
[iii] http://www.copyright.gov/fls/fl102.html, U.S. Copyright Office website, accessed March 27, 2011.
[iv] http://copyright.cornell.edu/policies/docs/Fair_Use_Checklist.pdf, Cornell University website, accessed March 28, 2011.