Tool by the ALA Office for Information Technology Policy to help you decide if you are using copyrighted materials "fairly" under the U.S. Copyright Law.
Handout from the U of Louisville Scholarly Communications Office to help you determine what can be copied under the law.
Tool by the Copyright Management Center of Indiana University to help you evaluate fair use of a particular work.
Tool from the Columbia University Copyright Advisory Services Office.
Tool by the ALA Office for Information Technology to help you find out if your intended use meets the requirements set out in copyright law.
Overview of Fair Use by University of Texas Libraries.
Stanford University Library Office of Copyright & Fair Use
Fair Use
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work--but an important limitation is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
There are four factors to be considered in determining Fair Use:
*NOTE: Not all non-profit educational uses are “fair.” A finding of fair use depends on an application of all four factors, not merely the purpose!
The Copyright Act contains some specific exceptions for the use of copyright-protected materials by academic institutions.
These provisions include:
Fair Use Best Practices for Teaching Faculty:
*NOTE: Primary areas of concern involve faculty distributing copyrighted materials through publicly accessible online platforms (e.g. personal website, faculty webpage or university social media) that enable access to these materials beyond the students specifically enrolled in your course.
Fair Use Best Practices for Students:
*NOTE: Primary areas of concern involve students distributing copyrighted materials through publicly accessible online platforms (e.g. website used for course assignments, like WordPress or Wix) that enable access to these materials beyond fellow students enrolled and faculty members.
FAIR USE FACTOR #1: THE PURPOSE AND CHARACTER OF THE USE
Supports Fair Use Claim | Undermines Fair Use Claims |
---|---|
Not for-profit institutional context | Commercial context |
Educational curricular context | Entertainment context |
Adaptation/modified/transformed original content | Direct copy of original content without attribution |
Criticism/annotation/comment added to original content | Direct copy of original content without attribution |
FAIR USE FACTOR #2: THE NATURE OF THE COPYRIGHTED WORK
Supports Fair Use Claim | Undermines Fair Use Claims |
---|---|
Published works | Unpublished work* |
Non-fiction | Creative/artistic work** |
Educational content without clear usage parameters | Educational content with clear commercial marketing*** |
*The unpublished “nature” of a work, such as private correspondence or a manuscript, can weigh against a finding of fair use. The Courts reason that copyright owners should have the right to determine the circumstances of “first publication.”
**Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works.
***Use of a work that is commercially available specifically for the educational market is generally disfavored and is likely to be considered copyright violation.
FAIR USE FACTOR #3: THE AMOUNT OR SUBSTANTIALITY OF THE PORTION USED
Supports Fair Use Claim | Undermines Fair Use Claims |
---|---|
Small portion of the overall work | Large portion or the entirety of the overall work |
Small portion which is not central to the overall work | Portion which is considered central to the overall work* |
*Courts have ruled that even the use of small amounts of an overall work may be excessive if they encompass the “heart of the work.” For example, a short clip from a motion picture may usually be acceptable, but not if it would be considered the most extraordinary or creative element of the film. Similarly, it might be acceptable to quote a relatively small portion of a newspaper article, but not if what you are quoting is the "scoop" the journalist uncovered.
FAIR USE FACTOR #4: THE EFFECT OF THE USE ON THE POTENTIAL MARKET FOR OR VALUE OF THE WORK
Supports Fair Use Claim | Undermines Fair Use Claims |
---|---|
User purchased the original copy of the work | User intends to replace a sale of the work |
Few copies made available | Numerous copies made available |
No significant impact on the market share for the work | Impairs the potential market share for the work |
No commercially available version of the work exists* | Version of the work could be easily purchased or licensed |
Access is restricted to those using the work for an educational purpose | Posted on a publicly accessible online platform that enables unrestricted usage |
Access is restricted to a time period corresponding to use of the work for an educational purpose | Unrestricted access that enables multiple, repeated and long-term use |
*For example, if there is not an electronic copy of a chapter within a book, or if a film has not been converted into a streaming media file. If faculty could easily obtain a licensed copy of the work in the desired format, or could easily obtain a licensing agreement for the work after creating a modified format (e.g. a scanned copy of the chapter) Fair Use claims are undermined.
Approximating permissible amounts of Copyrighted Materials covered under Fair Use
Type of Media | Permissible Amounts |
Motion graphics (movies, film, television) | Up to 10% of the total work, or 3, minutes whichever is less |
Textual materials | Up to 10% of the total work, or 1,000 words, whichever is less |
Music recordings, lyrics, and music videos | Up to 10% of the total work, but never more than 30 seconds |
Illustrations, or photographs |
No more than 5 images from a single artist No more than 10% of a total collection or works, or 15 images, whichever is less |
Numerical data-sets | Up to 10% or 2,500 data-points of the total data-set, whichever is less |
After establishing a context where Fair Use would apply, how much of an original work is permissible to use without a licensing agreement?
Motion Graphics
Textual Materials
Music recordings, lyrics, and music videos
Illustrations and Photographs