Fair Use

Listen to the fair use podcast (transcript)

Go directly to the Fair Use Helper

What is fair use?

Fair use is a flexible exemption to copyright that balances the author's need to make money with society's need for knowledge to be shared and reused.

Fair Use Facts

  • Fair use explicitly covers making a single copy for personal use. 
  • Fair use explicitly covers making multiple copies for classroom use. (This doesn't include making multiple copies for homework or research, or putting those copies online where anyone can access them.)
  • Not all educational uses are fair use. 
  • Not all nonprofit uses are fair use. 
  • Using small amounts of the source material is not necessarily fair use. 
  • Uses that are restricted to a small group of people are not necessarily fair use. 
  • Transformative works may not be fair use if they are insufficiently transformative.

The Balance of Four Factors

Fair use is determined by weighing four separate factors and looking at the combined outcome of all four. All four don't have to be favorable, but as a whole, they should be more favorable than not. In other words, you can flunk one factor and ace the other three, and it still might be fair use. Or you could do so-so on all four, and it could still be fair use.

The four factors are:

  1. Purpose and character of the use
    • For-profit uses are unfavorable.
      This includes something like marketing the college.
    • Education, research and scholarship are favorable.
      This includes things like quoting someone or copying a chart or image in a research paper. It also includes multiple copies for classroom use.
    • Criticism and commentary are favorable.
      This includes reviews, satires and most things that are protected under the First Amendment as free speech. 
      • Parodies have special protection. However, legal precedent requires that, for it to be considered a parody, the material you borrow is used to critique and comment on itself, not on another topic. 
    • News reporting is favorable.
    • Making a single copy for personal use is favorable.
    • Transformative works are favorable.
  2. Nature and character of the work
    • Published works are more favorable than unpublished.
      The reasoning is that the work's creator should be allowed to decide whether to withhold his or her work, or publish it himself or herself and make a profit from it.
    • Nonfiction works are more favorable than fiction, drama or art.
      The reasoning is that U.S. copyright law is not concerned with the arts; it is focused on scientific and technological progress.
  3. Amount and substantiality of the portion used
    • The judgment is not just quantitative, it's qualitative.
      If you take only a sentence or two, but that small passage is the core of the work, then it is unfavorable. On the other hand, parodies can take most of a work and only twist a few details, and still be considered fair use. Consider the other three factors. 
    • There is no safe percentage, number of pages or length of an audio-video clip. Use the smallest amount you can.
  4. Market effect
    • Anything that negatively impacts the copyright owner's ability to make a profit from the original work is unfavorable. 
    • Anything that negatively impacts the copyright owner's ability to make a profit from derivative works based on the original, even if he or she has not created those derivative works yet, and never will, is unfavorable.
    • This factor makes it hard to practice fair use online, because perfect copies are easy and cheap to make and share.

Always Fair Use

A few things are always considered fair use:

  • You can make a single copy for personal use.
  • You can convert a VHS movie to play on a computer.
  • You can photocopy a journal article to take it out of the library, or print it to take it away from the computer.
  • You can burn a new copy of a CD to play in your car so the original can stay home unscratched.
  • You can always link to a legal copy of something online. 
    • When linking to an image, you can use a tiny copy of that image (a thumbnail - usually 1 inch by 1 inch) to indicate what is behind the link. 
    • When linking to textual content, you can use its title, a brief quote or a summary to indicate what is behind the link.  
  • Unless it violates a license agreement, you can take screenshots to use in a review or instructions, even online. 
  • You can take brief quotes or clips of something to use in criticism and commentary, even online.
  • A student can take brief quotes or clips of something to use in an unpublished assignment, even online. 
  • The De Minimis rule says that it's okay to use a tiny, incidental or accidental fragment without permission: 
    • if you take a picture that includes part of an artwork in the blurry background
    • if you're recording an interview for a documentary and somebody's cellphone ringtone plays a bar of a song
    • if you use the title of an article as the text to link to that article.

Fair Use Helper

The Fair Use Helper is a form that walks you through the four factors when you want to use a particular copyrighted work in a particular way. It serves two purposes:

  1. It helps you decide whether what you want to do is fair use.
  2. You can save a copy of your completed form as documentation of your good faith effort to abide by fair use. This is important if you ever get a DMCA take-down or copyright lawsuit. 

Fair Use Helper