Fair use is an integral part of copyright law, as it allows for the reuse of copyrighted works without obtaining permission from the copyright holder. Successful examples of fair use include instances where the use is transformative in nature, such as parody, critique, commentary, or for teaching and education. Fair use could also be using a quote in an article to support an idea in a paper or using an image for a class presentation.
Making a decision about what constitutes fair use is not always as straightforward as it seems. There are four principles that the courts use to determine fair use, and fair use is never actually determined until a case is brought to court. The following principles should be considered holistically. If the intended use complies with only one principle, careful consideration should be taken about seeking copyright permission instead.
The first fair use principle is the purpose and character of the use. Non-profit, educational use is usually favored by fair use, while commercial reuse tends to be more difficult to justify.
The second principle is the nature of the copyrighted work. Is the original work factual or creative? Using factual works, such as textbooks, is more likely to be ruled as fair use than using creative works, such as visual art or musical works. Also, the use of published materials is also in favor of fair use, rather than unpublished works. The idea behind this is that the author has the right to control the first version of the work.
The next principle is the amount and substantiality of the work used. Making a scan of a small section of a book chapter for a class assignment might be considered fair use; scanning the entire book probably weighs against fair use. Also consider if what will be used could be considered the “heart” of the work, which also weighs against fair use.
The fourth and final principle is the effect of the use upon the potential market for the copyrighted work. Would the use take away any financial gain or sales from the original, or affect future derivatives of the original?
While the library cannot make legal decisions or offer legal advice to you, we are more than happy to help determine if a work is copyrighted, how you can ask for permission, and provide information to help you make a decision or get in touch with a legal expert. If you have a question about fair use, please send an e-mail to Stephen Gabrielson or Francesca Yates.
~Stephen Gabrielson