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:
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 **
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?
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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 Use of unpublished work is less likely to be considered fair because the law values the copyright holder's right to determine whether and how a work is first published.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.
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).
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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.
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