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Four Things You Should Know About Fair Use

One of the rights of the owner of copyrighted works is the right to reproduce or to authorize others to reproduce the work in copies. This right has certain limitations. One of the more important limitations is the doctrine of “fair use”. Although fair use is not previously mentioned in copyright law, the doctrine has developed through a substantial number of court decisions over the years.

There exists a list in Section 107 of the various purposes for which the reproduction of a particular work may be considered “fair”, including criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

  2. the nature of the copyrighted work;

  3. 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.

Consider the above four factors by asking the following questions when you are trying decide whether to use a work in your classroom. Aim for tipping the balance as far as possible to the left (“fair use”). In addition, here is a "Fair Use" Checklist to help you determine and show your intent to use copyrighted material lawfully. Fill out the checklist and keep it on file as documentation of your genuine effort to determine if you are in compliance with the Copyright Law of the United States Section 107.

1

 What is the character of the use?
FAIR USE

ADDS WEIGHT
to FAIR USE

SEEK PERMISSION

Nonprofit
Educational
Personal
(These are the
Most Protected Uses)
Criticism
Commentary
Newsreporting
Parody
Otherwise
“transformative” use
Commercial

2

 What is the nature of the work to be used?
FAIR USE
LITTLE EFFECT
ON THE SCALE
SEEK PERMISSION
Fact
Published
A mixture of fact
and imaginative
Imaginative
Unpublished

3

 How much of the work will you use?
FAIR USE

NO EFFECT
ON THE SCALE

SEEK PERMISSION
(If Nonprofit,
Educational,
Personal)
Small amount
(If Nonprofit,
Educational,
Personal)
More than a
small amount
(indicates lack of
harm to owner)
(If Nonprofit,
Educational,
Personal)
More than a
small amount
more than once

Commercial

If the first factor weighed heavily on “fair use”,

you can probably use more of a work than if it didn't.

4

 If this kind of use were widespread, what effect would it have on the market for the original or for permissions?
FAIR USE
SEEK PERMISSION
After evaluation
of the first
three factors,
the proposed use
is tipping towards
fair use
Original is out of print
or otherwise unavailable

No ready market
for permission

Copyright owner
is unidentifiable

Competes with
(takes away sales
from) the original

Avoids payment
for permission
(royalties) in
an established
permissions market

If the first three factors indicate that the use is likely not fair, courts are
willing to consider lost revenues under the fourth factor. If the first three
factors tip in favor of “fair use”, the fourth is not even an issue.

 

 

 

 
 
 
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