What Is Fair Use?
Fair use allows consumers to copy part or all of a copyrighted work, even if the copyright holder has not given permission to copy the work. Unfortunately, there are no clear-cut rules for determining this. Fair use is decided by a judge, on a case-by-case basis, after balancing four factors listed in the copyright statute. These factors are:
- The purpose and character of fair use
Educational purposes (such as making multiple copies for classroom use) is more acceptable than when monetary profit is anticipated (such as royalties from the sale of a book). Fair use is more likely when the copyrighted work is “transformed” into something new, such as quotations incorporated into a paper, or pieces of a work mixed into a multimedia product for teaching purposes or included in commentary or criticism.
- The nature of the copyrighted work
Many characteristics of a work can affect the application of fair use. Copyright owners have the right to determine the circumstances of first publication of their works. Courts favor the fair use of nonfiction more readily than fiction (novel, short fiction story, or song lyrics, for example). Commercial audiovisual works generally receive less fair use than do printed works.
- The amount and substantiality of the portion used in relation to the work as a whole
No specific measures of allowable quantity exist in the law. Quantity is evaluated relative to the length of the entire original and the amount needed to serve a proper objective. For example, copying an entire journal article would not be considered fair use. However, even short clips may be protected if they constitute the most extraordinary or creative elements of the piece, the “heart of the work.”
- The effect of the use on the potential market for, or value of, the copyrighted work
Some courts consider effect on the market the most important factor, although this is often difficult to assess. If your purpose is research or scholarship, market effect may not be an issue. If your purpose is commercial, market effect is presumed. Short, occasional quotations may have no adverse effect on the market of the source you’re quoting from. The newly created work should not be a substitute product for the copyrighted work.
Weighing and Balancing the Factors
All four of the factors above must be considered when attempting to reach a responsible conclusion about the lawfulness of “fair use.” If most of the factors lean in favor of fair use, the quotation will be allowed; if most lean in the opposite direction, you should request written permission from the copyright owner prior to publication. If there’s any doubt, check with the US Copyright office (http://www.copyright.gov).