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Fair Use

Fair Use is an exemption to the rights of copyright holders.

Best Practice: Complete the Checklist for each item you use in teaching and research. This documents your good faith effort in evaluating the fair use of the material.

The Four Factors

"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 Fair Use Checklist for how to apply these factors. (Checklist adapted from Crews and Buttler by Thompson and LeBeau).

  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of the copyrighted work; (fiction/creative/creatively expressed factual material or nonfiction/factual, published or unpublished)

  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."

 from the U.S. Copyright Office


Is Fair Use a law?
Yes, Fair Use is codified in Title 17, Section 107 of the U.S. Code. (17 U.S. C. § 107.)

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. If you can't make a case for fair use or your use does not fit one of the exemptions, you may not be able to use copyrighted content in the educational setting.

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, follow the suggestions in the Fair Use Checklist above. Section 110(1) is also an exemption for display and performance of copyrighted materials in face-to-face teaching. More guidance at Media in the Classroom.

In your course site, link to readings readings from library databases. You can place material not in a library database into Canvas if it meets a fair use analysis. To perform and display pedagogical material in classrooms using digital transmissions, use fair use or the TEACH Act.

What's new with Fair Use?
Professional communities of practice are beginning to issue best practices for interpreting Fair Use. Some of these are:


Fair Use Cases