Copyright Resources

The Four Factors of Fair Use

"Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as 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. See the Columbia University checklist (Crews and Buttler) (right corner) to see how to apply these factors.

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; (fiction/creative or nonfiction/factual)

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."

Is Fair Use a law?

Yes, Fair Use is codified in Title 17, Section 107 of the U.S. Code.

Is Fair Use only for educators?

No, fair use applies to everyone, nonprofit and commercial users alike. There are, however, certain privileges for educational uses.

Is all educational use "fair use?"

No.

What are some examples of ways copyrighted works can be used under the fair use exemption?

You can use small portions of a copyrighted work to comment and illustrate a point, report news, do research or scholarship, criticism or parody.

How much of a work can I use safely?

There are no amounts or percentages in the law. If you have heard of percentages, those most likely come from guidelines developed over the years by groups like CONFU, but these percentages are not written into the law. When using copyrighted work, use the least amount necessary. Although the law does not specify any amounts, copyright scholars seem comfortable with approximately 10% of a work. If however you have chosen the "heart of the work," a much smaller amount might fail the fair use test. The "heart of the work" of a book might be the pages with the key turning point of a story or the revealing motivation for a person's action. For a song, it might be the 4 second refrain that is recognized worldwide, across generations.

You may have more leeway with amount when you are creating a parody.

What is transformative use?

Think of this along with your first fair use factor. The nature of the use may be commercial or nonprofit, and nonprofit uses are always considered more favorably. If what you do with the copyrighted work adds new meaning, brings new value, or repurposes a work, you have transformed it beyond its original use. The problem with transformative work is that you may think a use is transformative, but the judge may not. It is not always predictable.

Stanford University has some examples to illustrate successful and unsuccessful transformative work.

How do I apply Fair Use in the classroom or in my distance education class?

For class handouts in a face to face classroom, see the tab marked "Classroom Guidelines."

For the use of performance and display in classrooms using digital transmissions (Blackboard, Moodle, etc), see the tab for TEACH Act.

Best practice is to complete the Checklist for each item you use in teaching and research. This documents your good faith effort in evaluting the fair use of the material.