Fair use is an important portion of copyright law that allows protected works to be used by others, largely for purposes considered to be socially beneficial. Teaching, scholarship, research, news reporting, criticism, and comment are mentioned in the law as favorable purposes. Fair use is determined by considering these four factors. No single factor determines the outcome; all must all be weighed to reach a decision.
Purpose and character of the use
As mentioned, nonprofit uses with social benefit are favored, such as teaching and research.
Judges also favor uses they consider to be transformative, which is interpreted to mean either:
• the copyright-protected work is used in a new creation that is not merely a reproduction of the original work, for example using portions of a picture in a collage
• the work is used in a new way that the owner would not have brought about, for example scanning books into a database that allows word searches of the texts but does not display large passages of text from the books
Nature of the work used
Use of highly factual material is more likely to be fair than use of very creative work.
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.
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.
The following tools can help you think through a fair use analysis. Just remember, they DO NOT OFFER LEGAL ADVICE.
To understand fair use, it helps to see examples of how the four factors have been applied. These sites offer summaries of fair use decisions.
It can be challenging that there are few absolutes about what is and is not fair. Rather, fair use is flexible, and determined on a case-by-case basis. It is determined only after a legal dispute goes court, which is a scenario we want to avoid. To provide guidance, 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 generally think certain activities are fair.