Copyright and Fair Use: Fair Use

What is Fair Use?

According to Section 107 in the Copyright Law, there are exceptions to the copyright law where it is not consider infringement of the law. It states, "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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."

Fair use frequently functions as an exemption to the copyright law for educational and socially important purposes such as teaching, research, criticism, commentary, parody, and news reporting; however, you cannot assume that all educational use is fair use. Anytime that you wish to use copyrighted material without permission you should consider all of the four fair use factors. 

The USG Fair Use Checklist allows you to determine whether or not using a copyrighted material is permissible under Fair Use.

Factor 1: Purpose and Character of the Use

•  Is the use for the purpose of teaching in a non-profit educational classroom?

•  Is the use for criticism, comment, news reporting, or parody?

•  Is the use crucial to achieve an intended educational purpose?

•  Will distribution be limited by password to students within a course? 

Factor 2: Nature of the Work

• The work is non-fiction in nature

• The work is a "non-consumable" meaning not a workbook or test

• The original work has been published.

Factor 3: Amount and Substantiality of Portion Used

• A small amount of the work is used (i.e. a book chapter or journal article)

• The amount used is for a justifiable purpose related to the course's curriculum.

Factor 4: Effect on Market for Original

• Would your use of the material impact the sales and market for this item?

How do I know if my intended purpose is within the limits of fair use? The fair use statute provides only the framework for the analysis and application of the four fair use factors. This means that the law lacks specificity, but it also means that fair use is flexible enough to be applied in a wide variety of situations. It can be difficult to determine if your intended use fits within the limitations of the fair use statute. Fortunately there are a number of very useful tools available online to help you consider the four fair use factors as they apply to your intended use. 

If you do a fair use analysis and determine that your intended use does not qualify as fair use, you have a couple of options. First, you can obtain permission directly from the copyright holder. This process can take time and may involve paying some form of royalty or licensing fee. Your second option is to reconsider your intended use. You can review your fair use analysis and determine which factors of your intended use most oppose fair use and make changes to be more favorable. For example, you could reduce the amount of material or choose content from different works that might be more favorable to fair use. You could also try to find comparable works in the public domain or Creative Commons works that would meet your purpose.

Resources for Determining Fair Use

• Follow the Four Factors of Fair Use: Video on using a fair use checklist to help conduct a fair use analysis from the OSU Libraries Copyright Services.
• Fair Use tutorial: A chapter about fair use written by Copyright Services.
• U.S. Copyright Office-Fair Use: Information on the fair use exception from the U.S. Copyright Office.
• Columbia University Libraries Fair Use Checklist: A printable fair use checklist created by copyright expert Kenneth Crews.
• OSU Health Sciences Library Fair Use Checklist: An interactive version of the fair use checklist.
• ALA OITP Fair Use Evaluator: This is an interactive tool that also includes information about the four fair use factors.
• Thinking Through Fair Use: This is one more online tool that can help you make a fair use analysis.
• Code of Best Practices in Fair Use for Academic and Research Libraries
• Center For Media & Social Impact's list of Codes of Best Practices In Fair Use

This work is subject to a Creative Commons Attribution 4.0 license.  It incorporates materials from The Ohio State University Copyright Services Guide, available at https://library.osu.edu/copyright/fair-use/, which is available under the same CC-BY license.