What is Fair Use?

The Law:

  • Fair use (Section 107 of the U.S. Copyright code) provides parameters for the legal use of copyrighted material without the permission of the copyright holder.
  • The law mandates that four factors be considered in determining whether or not a use is fair. These are: [link to law]
    1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
    2. The nature of the copyrighted work;
    3. The amount and substantiality of the portion used in relation to the work as a whole; and
    4. The effect of the use upon the potential market for or value of the copyrighted work.

The Low Down:

  • Broadly speaking, a "fair use" is one where the socially beneficial results of the use outweigh the exclusive rights of the copyright holder.
  • However, the distinction between "fair use" and infringement may be unclear and is not always easily defined.
    • For example: an educational purpose does not necessarily make a use fair, nor does using a portion of a copyrighted work for commercial purposes necessarily make it unfair. 
  • Only a court can ultimately determine if a use is fair and this can only happen if a case is litigated. Nonetheless, the copyright code, legal precedents & fair use educational materials can provide us considerable guidance in making fair use evaluations and/or avoiding litigation.