12 Fair Use
Chapter contributor credit: Isabel Soto Luna, Business Librarian, University of Nebraska at Omaha Library
Fair Use scenarios are probably the most common types of copyright questions that librarians find themselves helping faculty consider. The following slides contain some common scenarios that faculty might encounter. Remember that, as we’re considering these scenarios, Fair Use is often a holistic assessment considering multiple factors.
Fair use may not be what you expect. Whether or not you are within the boundaries of fair use depends on the facts of your particular situation. What exactly are you using? How widely are you sharing the materials? Are you confining your work to the nonprofit environment of the university?
To determine whether you are within fair use, the law calls for a balanced application of four factors. These four factors come directly from the fair use provision, Section 107 of the U.S. Copyright Act and they have been examined and developed in judicial decisions. The following summaries identify and explain the significance of the factors as they relate to many university needs. For more information about how to apply the factors in fair use, see the Fair Use Checklist.
Fair Use is a Balancing Test
To determine whether a use is or is not a fair use, always keep in mind that you need to apply all four factors. For example, do not jump to a conclusion based simply on whether your use is educational or commercial. You still need to evaluate, apply, and weigh in the balance the nature of the copyrighted work, the amount or substantiality of the portion used, and the potential impact of the use on the market or value of the work. This flexible approach to fair use is critical in order for the law to adapt to changing technologies and to meet innovative needs of higher education. Not all factors need to weigh either for or against fair use, but overall the factors will usually lean one direction or the other. Also, the relative importance of the factors is not always the same. Your analysis should guide you to a conclusion.
Factor 1: The Purpose and Character of the Use
The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. In addition, the statute explicitly lists several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship, or research. These activities are also common and important at the university. But be careful: Not all nonprofit educational uses are “fair.” A finding of fair use depends on an application of all four factors, not merely the purpose. However, limiting your purpose to some of these activities will be an important part of claiming fair use.
Courts also favor uses that are “transformative,” or that are not merely reproductions. Fair use is more likely to be found when the copyrighted work is “transformed” into something new or of new utility or meaning, such as quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original.
Factor 2: The Nature of the Copyrighted Work
This factor centers on the work being used, and the law allows for a wider or narrower scope of fair use, depending on the characteristics or attributes of the work. For example, the unpublished “nature” of a work, such as private correspondence or a manuscript, can weigh against a finding of fair use. The courts reason that copyright owners should have the right to determine the circumstances of “first publication.” Use of a work that is commercially available specifically for the educational market is generally disfavored and is unlikely to be considered a fair use. Additionally, courts tend to give greater protection to creative works; consequently, fair use applies more broadly to nonfiction, rather than fiction. Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works.
Factor 3: The Amount or Substantiality of the Portion Used
Although the law does not set exact quantity limits, generally the more you use, the less likely you are within fair use. The “amount” used is usually evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective. However, sometimes the exact “original” is not always obvious. A book chapter might be a relatively small portion of the book, but the same content might be published elsewhere as an article or essay and be considered the entire work in that context. The “amount” of a work is also measured in qualitative terms.
Courts have ruled that even uses of small amounts may be excessive if they take the “heart of the work.” For example, a short clip from a motion picture may usually be acceptable, but not if it encompasses the most extraordinary or creative elements of the film. Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “scoop.” On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose. Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount,” and this may not be a fair use. On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.” Such a version of an image might adequately serve educational or research purposes.
Factor 4: The Effect of the Use on the Potential Market for or Value of the Work
Effect on the market is perhaps more complicated than the other three factors. Fundamentally, this factor means that if you could have realistically purchased or licensed the copyrighted work, that fact weighs against a finding of fair use. To evaluate this factor, you may need to make a simple investigation of the market to determine if the work is reasonably available for purchase or licensing. A work may be reasonably available if you are using a large portion of a book that is for sale at a typical market price. “Effect” is also closely linked to “purpose.” If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then adverse market effect may be easier to prove. Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works.
Fair Use Scenarios
| Scenario | Fair Use? | Why? | |
|---|---|---|---|
| Article | A professor places a copy of an article they did not author on his personal web page and directs students to go there. | Likely not Fair Use |
Public access is not face-to-face, and a personal website is not considered educational. |
| Articles | A professor makes copies of an article and hands it out to her class, or places links in Canvas. | Likely Fair Use, if limited | A one-off sharing of an academic journal article is probably fine, for educational purposes.
Best Practice: Update your articles every year or so. You would rather not be teaching with outdated materials anyway. |
| Music | A music professor creates a presentation featuring contemporary artists, records it and places it in canvas. | Possibly Fair Use | This may qualify for fair use, but more information on
The music professor could strengthen the case for fair use by (a) not using much of the contemporary artists’ works, and (b) accompanying the recordings of music clips with criticism. |
| Textbooks | Believing a textbook to be too expensive, the professor copies the book for her students and places it in Canvas. | Likely not Fair Use |
Generally speaking, sharing textbooks is not fair use, as it will likely be considered circumvention. Moreover, the professor’s beliefs about the textbook expenses are not objective factors that would determine fair use. |
| Movies | The UNO History Club wants to start a film series to talk about historical inaccuracies in film. They intend to show Braveheart, Gladiator, The Patriot, and 300. They plan to show the films in the SAC and restrict access to IUSB students by having students show their ID. | Likely not Fair Use | Simply taking place at a university does not make for educational fair use. Such an event would be a public performance. If students were to request and obtain permission to show the movies before the film series, they wouldn’t infringe copyright. |
| DVDs | A professor makes a copy of a DVD for a colleague to show in class. | Not Fair Use | Fair use does not come into play here. This would not be a legally acquired copy and constitutes outright infringement. |
| Book Chapter | Only needing a single chapter of a book, and not wanting her students to have to purchase the entire text, a professor copies a single chapter and distributes it to her students, either in person or on Canvas. | Possibly Fair Use | This might be fine in a face- to-face scenario, but there is no fixed “maximum amount” that qualifies as fair use. The closest we have would be this general guideline: when it comes to Fair Use, less is better. |
This page makes use of material from “Fair Use,” by Kenneth D. Crewshttps://copyright.columbia.edu/basics/fair-use.html, Columbia University. CC BY 4.0.
