What is Fair Use?
To create a balance between the interests of those who develop intellectual and creative works and those who benefit from accessing and using those works, copyright law includes the exception known as Fair Use.
Under the Fair Use provision, a copyrighted work may be copied or reproduced without permission of the author for the purpose of criticism, commentary, news reporting, teaching, research and scholarship, depending upon whether the use meets the four factors of fair use.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
U.S. Copyright Act, 17 U.S.C., Section 107
Limitations on Exclusive Rights: Fair Use
Understanding the Four Factors of Fair Use
The fair use provision may be applied to the use of all copyrighted works, even those in digital form. To determine whether any particular use is fair use, you should conduct a case-by-case analysis based on all four of the factors below.
First Factor: Purpose and Character of the Use
If the purpose of the use is educational, such as classroom instruction and restricted access course websites, for research and scholarship, or for criticism, commentary or news reporting, it is likely “fair use.” If the purpose of the use is for commercial gain or public distribution, then it is likely not “fair use.” However, educational use in and of itself will not assure that your use is a fair use, and not every commercial use will fail as a fair use. Transformative uses, uses that result in the creation of a new work, with a new purpose and different character are favored as fair uses over uses that merely reproduce an original work.
Second Factor: The Nature of the Copyrighted Work
Factual works, published works and scientific articles that are factual in nature are more likely to be considered available for fair use than are creative, imaginative, artistic, or unpublished works.
Third Factor: Amount and Substantiality of the Portion Used
There are no hard and fast rules concerning how much of a work may be used under fair use. Contrary to popular belief, there is no prescribed set amount (no more than 10% rule) that authorizes use. In general, the smaller the amount used, the more it tends to be favored as fair use unless the portion used is considered to be the most essential part, also known as the "heart of the work." The central question is whether the quantity and value of the materials used are reasonable in relation to the purpose of copying. As a general rule of thumb, only use the portion of the work needed to meet your needs.
Fourth Factor: Effect on the Potential Market for or Value of the Work
Generally, the consideration for this factor is whether or not there is some economic harm to the owner of the copyright as a result of your use. Repeated use of the same work, or distribution of multiple copies of a work may affect the market value of the work, and such uses are likely not “fair use.” Likewise, if a license to the work or asking the copyright holder permission to use the work are available options, then use of such works is likely not “fair use.” This factor alone, however, cannot determine whether or not a use is fair. If the first three factors weigh in favor of fair use then market harm should carry less weight even when considering the permissions market, since the market is for permissions that are required. Conversely, if the first three factors are tipping the balance in favor of permission then market harm will carry more weight in the balancing of the factors.
Fair Use Checklists
- Fair Use ChecklistUse this checklist to help evaluate whether a use of a copyrighted work could be fair use. Remember: No single item or factor is determinative of fair use.
- Fair Use Checklist (Videos)Use the Fair Use Checklist to help guide you in making your fair use analysis for using videos in an online distance education environment. Before proceeding with a request to digitize, you must submit a signed copy of the Fair Use Checklist to Course Reserves.
Fair Use Resources
- Fair Use EvaluatorA tool designed to help you determine the "fairness" of use under U.S. Copyright law.
- The Fair Use App- An interactive guide for filmmakers and video creators.A guide to help you navigate fair use in relation to reusing existing content such as images, audio or video for your video project.
- Can I Use That? Fair Use in Everyday LifeA useful handout created for a faculty workshop on fair use, created by Nancy Sims, Copyright Librarian at the University of Minnesota.
- Know Your Copy Rights: What you CAN doA pamphlet created by the by the Association for Research Libraries that provides tips about fair use for faculty and teaching assistants in higher education.
- Fair Use FundamentalsAn infographic created for Fair Use Week that provides an overview of what fair use is, why it is important, and who uses it.
- Summaries of Fair Use CasesThis resource provides a review of important fair use cases and how the courts have interpreted the four factors over the years.
- Fair Use in a Day in the Life of a College StudentAn infographic created for Fair Use Week depicting a college student's typical interaction with fair use.
- U.S. Copyright Office Fair Use IndexThe Fair Use Index tracks a variety of judicial decisions to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair or not fair.
- Copyright Law: "Fair Use" ExemptionTILT's resource on fair use.
Informational Purposes Only
The materials and information on this guide are intended for informational purposes only. CSU Libraries make every effort to assure the accuracy of this information but do not offer it as counsel or legal advice. Please consult the University's Office of the General Counsel or your own attorney for advice concerning your specific situation.