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Copyright & Fair Use at UC San Diego: 4 Factors of Fair Use

Applying Fair Use

Specifics in the Fair Use Statutes

The 1961 “Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law”, as seen on the U.S. Copyright Offices’ website, says the following uses of copyrighted material are permissible.

  • Quotation of excerpts in a review or criticism for purposes of illustration or comment

  • Quotation of short passages in a scholarly or technical work

  • For illustration or clarification of the author’s observations

  • Use in a parody of some of the content of the work parodied

  • Summary of an address or article, with brief quotations

  • In a news report

  • Reproduction by a library of a portion of a work to replace part of a damaged copy

  • Reproduction by a teacher or student of a small part of a work to illustrate a lesson

  • Reproduction of a work in legislative or judicial proceedings or reports

  • Incidental and fortuitous reproduction

  • In a newsreel or broadcast

  • Of a work located in the scene of an event being reported

4 Factors of Fair Use

Fair Use

Fair use allows for the limited reproduction or modification of another's work without specifically requesting permission to do so because the use is a small portion of the whole work and for non-profit educational or research uses.  It has some legislation as its foundation - specifically section 107 of the copyright law - which spells out specific purposes for fair use plus it sets out the four factors to be considered when determining if a particular use is fair.

Four factors are considered when determining fair use; however, fair use is a balancing of all four and all four factors are a required aspect of the consideration.

The Four Factors are:

1) The purpose and character of the use which includes whether the use is for an educational purpose or one that is commercial.

Nonprofit educational uses are favored over commercial ones - particularly if it includes activities such as commenting, teaching, scholarship, or researching.  

Another aspect of this factor is whether the activity is transformative of the original - does the fair use result in something new or of a new utility.  For example, quotations used in a manuscript or pieces of a work mixed into multimedia product for your own teaching needs.  

 2)  Nature of the copyrighted work

This one focus on the work being used and fair use can depend upon the inherent qualities of it.  For example, using a work that is commercially produced for the educational market is not as likely to be fair use.  Also, creative works (art, music, poetry, films, fiction stories) tend to have greater protection in court cases.  

3)  The amount & substantiality of the portion used in relation to the whole.

General rule of thumb -- the more you use of a specific work, the less likely it is to be fair use.  However, there is no hard line about quantity.  The amount of a work is measured in more qualitative than quantitative terms.  

Photographs and artwork are often problematic.  Most of the time, a user needs the entire image and with the idea that fair use does not use the full amount of any work, it would argue against fair use.  One possibility of dealing with photos or artwork in a fair use way (and one  that has been accepted by the courts) is the use of a thumbnail or low-resolution version of an image as a "lesser amount" of the work.  

 4)  The effect of the use on the potential market for the copyrighted work.

This is a complicated factor that looks at whether one's use of a work, in effect, reduces the possible purchase or licensing of a work.  Purpose comes into play in factoring the effect on the market value.  If used for research or scholarship, market effect may be difficult to prove, whereas, a commercial purpose would be easier to do so.  It come down to money - does your use reduce possible income of the copyright holder.

 Adapted from Columbia University

Check out UC's Fair Use page for more.

Determining Fair Use

When evaluating a specific use as fair use or not, remember that it is the application of all 4 factors that helps determine that - education use vs. commercial use is not the only factor to consider.  It is a balancing of all 4 that determines fair use; however, it is not a situation where all 4 must be for or against fair use, but an "overall leaning" toward one side or the other.

Questions to think about are: 

  • What exactly are you using?
  • How widely are you sharing the material?
  • Are you confining your work to the nonprofit environment of the university?

 Use the Fair Use Checklist (link below) to more fully explore the 4 factors.

Purdue University's Copyright Office created the following table:

It is ...

 If ...

Fair use 4 factors favor fair use
More than likely fair use 3 factors favor fair use
May be fair use 2 to 2 tie.  You have to assess the risk
Not fair use 1 factor favors fair use

 

Tools to Help Understand & Determine Fair Use