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What is Fair Use?

Fair Use is one means by which copyrighted works can be used without obtaining permission from the copyright holder. Fair Use is limited, but flexible, and is commonly used in educational settings.

Conducting a Fair Use analysis requires weighing four factors for each individual use, and seeing if, on balance the use is a fair one. Sometimes, the use is clear-cut. Other times, it's a judgment call, and two people analyzing the same situation can come up with different outcomes. Such is the nature of Fair Use.

The four factors are:

  • nature of the work - factual vs fictional
  • nature of the use - educational vs for-profit
  • amount of the work being used - small amount vs large amount
  • effect on the market - would widespread use have a negative effect on owner’s right to receive remuneration?

Each use is evaluated individually by doing a Fair Use test. Legally, there is no maximum number of pages nor percentage of the whole that determines Fair Use.

Fair Use Infographic, full text below

Text-only version

Am I safe under Fair Use?

What is Fair Use?

Fair Use is one means by which copyrighted works can be used without obtaining permission from the copyright holder.

Evaluation

Consider the positive and negative factors featured below when evaluating content for Fair Use

Character of Use
  • Negative
    • For profit
    • Entertainment
    • Copied verbatim
    • Does not give credit
  • Positive
    • Educational
    • Transformative
    • Criticism or parody, etc.
Amount Used
  • Negative
    • Large amount
    • Heart of the original work
  • Positive
    • Only a small amount
    • Not central to the entire work
Nature of the Work
  • Negative
    • Unpublished
    • Fictional
    • Highly creative
  • Positive
    • Published
    • Factual
Effect on Market
  • Negative
    • Could replace sale of original
    • Numerous copies
    • Available on open internet
    • Access to licensing
  • Positive
    • Minimal effect on market
    • Few copies made
    • Limited access
    • Lack of licensing

Weighing ALL the Factors

Fair Use requires weighing all four fair use factors and making a judgment. Sometimes the judgment is obvious and sometimes two people might come to different conclusions. Have questions? Ask a Librarian!

Penalties for Infringement

The remedies provided by the law to a copyright owner mean that an individual found making illegal copies, or otherwise infringing, could face some very unpleasant consequences:

  1. Statutory damages of from $750 to $30,000 in the simplest cases. If the court finds that the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement" the minimum damages may be reduced. Also, the penalty can be remitted for teachers in public or nonprofit schools who had reasonable grounds for believing that the "fair use" portions of the law applied. But be aware that ignorance of the law is no excuse—teachers who wish to use this provision need to understand "fair use" and make the most of the privileges it grants, but they must also abide by its very definite limitations.
  2. If a court decides that the act of infringement was willful, the damages can go up to $150,000 per copyright infringed.
  3. If a court finds willful infringement for commercial advantage and private financial gain is proved, the infringer can face criminal fines of up to $250,000 or five years' imprisonment, or both

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