Fair Use Analysis

What is Fair Use?

Section 107 provides that the Fair Use of copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether a use is fair, four factors must be considered.

A fair use analysis involves balancing the four factors. If the weight of the factors leans towards "favorable to fair use," then permission is not required. If the weight of the factors leans towards "unfavorable to fair use," then the use is not likely to be considered fair use and permission from the copyright owner must be obtained. Conducting a fair use analysis can seem difficult. Reasonable people can come to different conclusions regarding the same use.

At the end of this section are a series of links to web sites with some simple fair use guidelines for specific situations faced by educators.

Factor 1 - Purpose and character of the use

Favorable to fair use teaching, scholarship, research, non-profit, personal use
Unfavorable to fair use intent is to derive commercial benefit
NOTE: Parody, criticism, commentary, news reporting, and other transformative uses are core fair uses. If combined with other uses, they add weight to make them more fair.

Factor 2 - Nature of the copyrighted work

Favorable to fair use factual, published
Unfavorable to fair use imaginative, consumable materials (e.g., workbooks, answer sheets, surveys), unpublished
Little effect on balance mixture of factual and imaginative

Factor 3 - Amount and substantiality of portion used

Favorable to be fair use small amount relative to the entire work
Unfavorable to fair use an entire work, more than a small amount of the “heart” of the work
NOTE: The importance of this factor varies depending on whether the proposed use is educational or commercial.

Factor 4 - Effect on the potential market for the work

Favorable to fair use Original is out of print or unavailable. No ready market for permissions. Reasonable attempts to obtain a copy or permission to copy have been documented.
Unfavorable to fair use Use substitutes for purchase of the original work, or the work has been used in this course before. Avoids payment in an established permissions market.
NOTE: Courts have ruled that this factor cannot convert an otherwise fair use to an infringing use. If, after evaluation of the first 3 factors, the proposed use is favorable to fair use the analysis ends and the use is fair. On the other hand, if the proposed use is tipping toward infringement, this factor should be considered.

This chart is adapted from The Copyright Crash Course © 2001 Georgia Harper at the University of Texas

Additional resources on fair use:

University of Texas Rules of Thumb – UT System’s fair use guidelines for using copyrighted works in coursepacks, distance learning, image archives, multimedia works, music, research copies and reserves

Visual Resources Association Intellectual Property Rights Committee – includes image collection guidelines and a “copy photography computator” to help determine the rights in a particular image