Fair Use
Fair use allows limited use of copyrighted material without permission from the copyright holder. It's determined by factors like the purpose of the use, the nature of the work, the amount used, and the impact on the market. Common examples include criticism, commentary, and educational purposes. Ultimately, a court decides if a specific use is "fair."
The Four Factors of Fair Use
Factor 1: The purpose and Character of the use (why you're using it)
This looks at whether you're using the copyrighted material for something like education, news, or criticism, or if you're just using it for commercial gain. If you're changing the original work to create something new, that also weighs in your favor. Using the content in a class/educational setting would favor Fair Use. Properly crediting sources also favors Fair Use. Profiting from the copyrighted content and denying credit would be examples of opposing Fair Use. Sharing the copyrighted content publicly online would oppose Fair Use.
Factor 2: The nature of the copyrighted work (what kind of copyrighted material you're working with)
This factor centers on the work being used. Using factual works is generally more acceptable than using creative works like movies or songs. Also if the work is published or unpublished.
Factor 3: The amount or substantiality of the portion used (how much you're using)
This looks at how much of the original work you're using. Taking a small portion is usually better than taking the whole thing, but even taking a small portion that is the "heart" of the work can be problematic. A single screenshot from a two-hour film may Fair Use.
Factor 4: The effect of the use on the potential market for or value of the work (how it affects the original's market):
This asks whether your use of the copyrighted material will hurt the copyright holder's ability to make money from their work. It would be problematic if your use replaces the original or takes away its potential market. For example, if someone were to copy an entire book and distribute it, that could hurt the sales of that book. It's copyright content that's already freely available online per se, then that might not have an impact on the market.
Assessing Fair Use
When assessing for Fair Use, consider the following steps:
Determine the Purpose and Character of Your Use:
- Ask: Is your use transformative? (Does it add new meaning or purpose?)
- Consider if your use is for non-profit educational purposes, criticism, commentary, or news reporting. These are more likely to be considered fair.
Evaluate the Nature of the Copyrighted Work:
- Is the work published or unpublished? Published works are more likely to support a fair use claim.
- Is the work factual or creative? Factual works generally have a broader scope of fair use.
Assess the Amount and Substantiality of the Portion Used:
- How much of the work are you using? Using a smaller portion is generally better.
- Are you using the "heart" of the work? Even a small portion can infringe if it's the most important part.
Analyze the Effect of the Use on the Potential Market:
- Will your use harm the copyright holder's ability to profit from their work?
- Could your use replace the original work in the marketplace? If so, it's less likely to be fair use.
Document your reasoning:
- It is very important to document your process of how you came to your conclusion of fair use. If you ever have to defend your usage, this documentation will be very helpful.
