Fair use seeks to balance the exclusive rights of copyright owners and the needs of others to use copyright-protected works. To determine whether a use is fair, judges consider (and lawyers argue) four factors, which are codified in 17 USC §107. The fair use doctrine is deliberately flexible. Each situation must be evaluated individually.
The only people who decide whether a use is fair are federal judges—after a dispute is argued before them. Previous fair use decisions give us we guidance about how to interpret the four factors. Yet nobody can tell us in advance whether a use is fair. We must use our best judgment in evaluating fair use.
Nothing in this guide or the linked resources provides legal advice. These tools are provided for reference, and I hope they help you to understand this interesting and vital area of law.
Fair use is determined by considering these four factors. No single factor determines the outcome; all must all be weighed to reach a decision. Think of each factor as a sliding scale from unfair to fair.
Purpose and character of the use
Nonprofit uses with social benefit are favored. Teaching, scholarship, research, news reporting, criticism, and comment are mentioned in the law as favorable purposes.
Judges also favor uses they consider to be transformative, which is interpreted to mean either:
It is not favored if a work is used for the same purpose for which it was originally made available. For example, if a feature film is used for entertainment purposes.
Nature of the work used
Highly creative works, such as films, novels, and songs, are more protected than highly factual ones.
Amount of the work used
Judges consider how much of a work was used and whether the portion used was the heart of the work—the juicy part everyone wants to read, hear, or watch. They evaluate these in light of the purpose of the use: are the amount and substance of the portion used necessary for the purpose? For example, it is fair for Google Books to scan entire books to allow them to be searched for word matches (which is a transformative use under factor one). However, it was not fair for a newspaper to print the most anticipated part of a biography without permission, even though that portion was very small (approximately 300 words).
Effect on the market for or value of the work used
If a copyright owner would lose revenue because of a use, that use is not likely to be fair. Also, judges consider not just the use at issue, but whether widespread similar uses would harm the market for the original.
Many professional communities have carefully studied their activities in relation to fair use, and developed statements of best practices. While best practices are not law, they do explain why practitioners believe certain activities are fair.
The information on this site is intended to inform the faculty, staff, and students at the College of DuPage about copyright and to provide guidelines for using and creating copyrighted material. The information should not be considered legal advice.
For more information contact the Library's Copyright Liaison.