Fair use is an exemption to copyright law. It lets you use a copyrighted works without permission. For a use to be a fair use, the law requires a four-factor analysis of a use (17 U.S. Code § 107). Fair use is meant to balance the rights of copyright owners with the rights of the public to reuse copyrighted works for public benefit. Fair use is technologically neutral, so the same analysis applies regardless of medium.
You will only know definitively that your use is fair when a federal judge rules it to be so. However, it is helpful to understand how fair use and the four-factor analysis work to assess your risk in using a copyrighted work. In copyright infringement cases, the court can reduce the damages if the alleged infringer can show that they understand fair use and made a good faith effort in determining their use was fair.
Although only a federal judge has the authority to deem a use fair, you can still conduct your own analysis to determine if your use is likely to be fair. To do this, you want to evaluate each intended use against the following four factors in balance. This is a subjective exercise. It’s an essay, not a multiple choice test.
Factor 1: Purpose and Character of the Use
The first factor is the only factor that considers your intention. It tries to identify if the purpose and character of using the work serve the larger public good, such as teaching or research. This factor also considers whether the use is transformative. A transformative use changes the original work to serve a new purpose or adds a new value to the original work. Educational uses and transformative uses tend to weigh more favorably toward fair use.
Factor 2: Nature of the Copyrighted Work
The second factor considers the nature of the copyrighted work. Artistic and creative works get stronger protection than factual works. So, a factual work tends to weigh more favorably toward fair use than an artistic and creative work.
Additionally, courts consider whether the work is published or unpublished. Courts defer to copyright owners on their right to decide when/if a work is published. As a result, unpublished works enjoy more protection than published works. Published works weigh more favorably toward fair use.
Factor 3: Amount and Substantiality
The third factor considers how much of the work you’ve used. Simply put, the less you use the better. Courts consider amount from both a quantitative and qualitative perspective. The smaller the amount used, the more likely the use is fair. Yet, even a small amount of a work may not be fair if it is the “heart of the work,” or the most memorable aspect of the work.
Also, consider whether the amount used is appropriate for a favored purpose. For example, when writing a book or dissertation that analyzes a particular poem through critical reading, you need to reproduce the entire poem to achieve your scholarly goal. However, reproducing the poem on postcards that you sell on Etsy requires permission from the rightsholder. The context matters.
Finally, the courts will consider if the amount used was the smallest amount necessary to achieve your goal. If you’re reusing a portion of a work, make sure it is the smallest amount necessary to meet your need.
Factor 4: Effect on the Potential Market or Value
The fourth factor considers whether the use deprives the copyright owner of income. It looks at the impact on the market or potential market for the original work. Generally, the more widely you distribute a work the more you impact the potential market for it. So, the more restricted the use, the less of a market impact.
The courts are careful to consider the fourth factor in relation to the purpose of the use. If the purpose is commercial, then the market for the original is likely to be negatively impacted. The use of works created for a commercial educational purpose, like workbooks or educational videos, are rarely found to be fair in academia because such works are produced specifically for the educational market. Yet, if the use is transformative, then arguing that the market for the original was impacted is more difficult.
When completing your fair use analysis, you’ll want to weigh these factors in relation to one another.If you find your use is not fair, you can still
- Adjust your use to better fit within the parameters of fair use
- Seek permission from the copyright owner