Understanding the Four Fair use Factors

WHAT IS FAIR USE?

THE FAIR USE DOCTRINE• section 107 of the copyright law of 1976• based on a history of court decisions • recognizes some unauthorized uses of

copyrighted works are “fair uses.”• public access to copyrighted works to

support the advancement of knowledge

varies with the facts of each situation.

FAIR USE

Fair use is determined by the balanced application of four factors. 12 43

1. the purpose and character of the use

2. the nature of the copyrighted work

3. the portion used in relation to the whole

4. the effect of the use on the market for the copyrighted work

1. THE PURPOSE AND CHARACTER OF THE USE

“What are you going to create with the copyrighted material?”

Educational purposes almost always fall within the limits of the fair use.

Commercial uses usually do not constitute fair use.

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The following purposes, listed in section 107, make it easier to claim fair use:

FAIR USE

•criticism•comment•news reporting

•teaching•scholarship•research

FAIR USE

•Transforming the work instead of reproducing it helps establish fair use.

Be Transformative

2. THE NATURE OF THE COPYRIGHTED WORK

“How would you describes the work you wish to use?”

Is the copyrighted work you wish to use…

…informational, factual, creative or fiction?

The use of informative or factual work is likely

to be considered fair use.

The use of fictitious or creative works is less likely to be considered fair use.

…educational or entertainment?

Is the copyrighted work you wish to use…

The use of educational works favors fair use. The use of entertainmentworks does not.

….published or unpublished?

Is the copyrighted work you wish to use…

Published materials are more accepted than unpublished, in fair use cases.

3. THE PORTION USED IN RELATION TO THE WHOLE

“How much of, and what part of the copyrighted work do you wish to use?”

How much are you using?

Less is more. The less you use, the more likely you are to be exhibiting fair use.

How much is to much?• There is no set amount.

• The amount is usually relative to the size of the

entire work.

How much is too much?

A small amount is considered too much if it contains the “heart “ of the work.

4. EFFECT OF THE USE ON THE MARKET FOR THE

COPYRIGHTED WORK

Does your use of the copyrighted material impact the market for the original work?

To answer this consider the following:

1. Is what I created going to compete with the market for the original work?

2. Is what I created a “substitute” for purchasing the original work?

REMEMBER1. THE PURPOSE

2. THE NATURE

3. THE PORTION4. THE EFFECT

It is up to each person who uses copyrighted works to

make a reasonable and responsible decision about

fair use.

By balancing the four fair use factors, respectful, lawful decisions can be made.

FAIRUSE

EFFECTPORTION

NATUREPURPOSE

Fair Use (U.S. Copyright Office)

The Fair Use Exception

Fair Use: The four factors

Further information can be found at these web sites:

Credit and copyright attribution for vector images goes to Shutterstock and the following artist:

Scale by sarahdesign, Chalkboard by chudo-yudo, Factual and Fictional books by Nikki_P, Comedy and

tragedy masks by Natykach Nataliia, Bookshelf by Valashko Maryia, Pie chart by oorka, Heart by Chuhail.

Four fair use factors balancing on ball original work by Tressa Beckler