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This guide provides an introduction to U.S. copyright law and associated resources related to education and scholarship.

What is fair use?

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Fair use (described in §107) allows for limited, socially beneficial uses of copyrighted material without having to seek permission. It applies to both digital and physical materials. Fair use applies to purposes such as criticism, parody, news reporting, research, scholarship, and teaching. However, just because a purpose may be educational does not allow for unrestricted use, and one must still establish a case for fair use.

Copyright law lists four factors to consider when determining whether a use is a fair:

  1. Purpose
  2. Nature
  3. Amount
  4. Effect on Market

To rely on fair use, you will need to evaluate each of these factors in light of how you plan to use the work. Each event must be evaluated independently as to whether or not there is infringement of copyright law. It is recommended that you document a good faith analysis for each use case and retain this documentation for your records.

** Click Here to Download a Template for Documenting Your Analysis **

Factor 1: Purpose & Character of Use

Nonprofit, educational, and personal uses are generally favored fair uses while commercial uses are less likely to be deemed fair use. Educational use, however, will not assure that your use is fair, and commercial use will not necessarily fail as a fair use.

Transformative uses are those that result in the creation of a new work with a new purpose and different character. The more transformative a particular use is the less significant the other factors will be. Read more about transformative uses on Nolo's page Fair Use: What Is Transformative?


Weighs against fair use:

  • commercial/for-profit activity
  • decorative or other non-critical, non-commentary use

Favors fair use:

  • non-profit
  • educational, scholarly, or research
  • personal
  • criticism/commentary
  • news reporting
  • parody
  • otherwise "transformative" use

Factor 2: Nature of Copyrighted Work

The nature of the copyrighted work considers whether it has been published and whether it is factual. Use of unpublished work is less likely to be considered fair because the law values the copyright holder's right to determine whether and how a work is first published. Highly creative works also receive stronger protection than factual, non-fiction works. Finally, use of "consumable" works, such as workbooks that are sold to educational markets, are generally disfavored under fair use.

Weighs against fair use:
  • unpublished work
  • fictional/highly creative work
  • consumable/one-time use work (workbooks)
Favors fair use:
  • published work
  • factual or nonfiction work

Factor 3: Amount and Substantiality of Use


Contrary to many guidelines and misconceptions, there are no numerical thresholds on the amount of a work that can be used to be considered fair use. Instead, the law considers both the quantity of what you use and whether you have used the "heart of the work." It is particularly important to consider this factor in the context of the first two factors, as they can have a significant impact. For instance, a nonprofit, educational use of a whole work may only weigh somewhat against fair use, while a commercial use of a whole work would weigh strongly against fair use.

Generally, the less of a work you use, the more likely it is that your use is fair. However, even small portions may exceed fair use if the most notable or creative aspects of a work are used. On the other hand, there are many instances in which using an entire work will qualify as fair use (for example, using an image that is being critiqued in a scholarly presentation).

Weighs against fair use:

  • large or entire portion used
  • portion is central to the work or the "heart of the work"
  • amount used is more than necessary for criticism, comment, research, or subject being taught

Favors fair use:

  • small portion used
  • portion is not central or significant to the work as a whole
  • only using as much as absolutely necessary for a favored purpose

Factor 4: Effect Upon the Potential Market


This factor looks at whether or not there is economic harm to the copyright holder as a result of your use. It is important to consider not just whether your particular use has a negative impact, but also whether widespread use of the same type would have an effect on the work's potential market.

Courts have established that licensing is part of the potential value of a copyrighted work, and so evaluating this factor may require an investigation into whether there is a reasonably available mechanism for licensing the work. If so, this weighs against relying on fair use.


Weighs against fair use:

  • significantly impairs market or potential market for copyrighted work or derivative
  • licensing or permission reasonably available
  • numerous copies made or distributed
  • repeated or long-term use that demonstrably affects the market for the work
  • required classroom reading
  • user does not own lawfully acquired or purchased copy of original work
  • unrestricted access on the web or other public forum

Favors fair use:

  • no significant effect on market or potential market for copyrighted work
  • use stimulates market for original work; no similar product marketed by copyright holder
  • no longer in print; licensing or permission unavailable
  • supplemental classroom reading
  • one or few copies made or distributed
  • user owns lawfully acquired or purchased copy of original work
  • restricted access to work (to students or other appropriate group)
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distribute by Adrien Coquet from the Noun Project
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