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Copyright & Fair Use

What is Fair Use?

Copyright not only protects creators and their creations, it also legally establishes the defensible position of the public to access and use copyright-protected works for educational and research purposes.

In Section 107 of Chapter 1 of Title 17 of the United States Code, fair use is explained as a limitation to the exclusive rights of copyright holders. The section reads:

[...] the fair use of a copyrighted work [...] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - 

(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.

There's no one right answer as to what constitutes a fair use of a particular copyrighted work. The answer varies from situation to situation.

Four factors are considered in all fair use evaluations. They are:

  • Purpose & character
    • Purpose: Is the copyrighted material being used for commercial or nonprofit educational purposes? Fair use favors educational purposes, but commercial entities can also take advantage of fair use
    • Character: Is the use of the copyrighted material transformative? (i.e. subjected to scholarly analysis, remixed, parodies, etc.)
  • Nature of the work
    • Has the work been previously published? Is the work primarily factual or creative in nature? Is this work created and/or marketed as a textbook or an educational consumable (i.e. workbook, etc.)?
  • Amount
    • How much of the work is being used? How important is the portion being used? If you are using the whole work, is it clear that no less than the whole work will be effective (i.e. photograph, poem, etc.)?
  • Effect 
    • Is the work in-print? Is it available licensed elsewhere? Is there a market for the work? Can you identify the copyright holder? Did the copyright holder respond to a request for permission? Did you acquire this copy legally? Will you be able to attribute the original author?

These four factors are not meant to be exclusive and must be examined together. The statute does not indicate how much weight is to be accorded each factor, therefore, it is advisable to treat the four factors equally.

Content on this page is licensed under a Creative Commons Attribution 4.0 International License. It is attributed to Butler University Libraries.