JCKL as a service to UCM faculty, staff, and students, provides reference services and information, including this research guide. Missouri law requires that legal advice and services be provided only by qualified attorneys who are subject to the guidelines of the courts. The content contained within this guide is intended for informational purposes only and should not be construed as legal advice, interpretation of the law, or an explanation of court procedures. This information is not a substitution for legal advice from a licensed attorney.
Copyright offers creators strong protections for their created works. Yet, there are several areas of exceptions. Of these, "Fair Use" is perhaps the most well known and recognized of these.
The idea that some uses should be allowed even though they may be contrary to the interests of the copyright owner comes form the purpose of copyright itself. The Constitution tells us that copyright exists to "promote the advancement of the useful arts." If authors had absolute rights to protect their works, people could not create new works that build on them in any way, or use the works in ways that the author does not permit. Fair use carves out a space where you can use copyrighted works because it benefits everyone.
17 U.S.C. § 107 presents the four factors to be reviewed when determining if fair use is applicable. Importantly, no single factor in this assessment is determinative and in every case, there will be certain factors that weigh in favor of fair use and factors that weigh against a determination of fair use. The responsibility rests upon you to balance the factors against each other and the intended use of the content to determine whether fair use is appropriate in your given situation.
Factor 1: "The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes"
This factor examines why you are copying the work and what you intend to do with the copied work. Areas such as personal use, education, scholarship, research are good and weigh in favor of fair use. Anything that "transforms" the original work even better and weighs in favor of fair use. Anything use that is commercial or for-profit weighs against fair use.
Factor 2: "The nature of the copyrighted work"
This factor addresses the type of work that is being copied. Is it published or unpublished, or if the work is fiction or non-fiction (factual versus creative). Typically, uses of published works are more likely to weigh in favor of fair use than uses of unpublished works. Similarly, uses of non-fiction (factual) works are more likely to be fair use than those of fiction (creative) works.
Factor 3: "The amount and substantiality of the portion used in relation to the copyrighted work as a whole"
This factor is one of the most challenging of the four factors and has been subject of considerable debate. This factor considers both the percentage of a work that you are copying and how important that part is in relation to the work as a whole. As such, use of a small piece of a work, or a piece that is unimportant to the work as a whole weighs in favor of fair use. This applies to both quantitative and qualitative aspects of the work. Using a large amount of the work or a piece that is the "heart" of the work weighs against fair use. Use of just enough, and no more weighs in favor of fair use.
Factor 4: "The effect of the use upon the potential market for or value of the copyrighted work"
This factor requires you to assess the impact of your use of the work in relation to the market for that work. A way to think about this is to ask yourself if the use of the work will take profits from the copyright owner in any way, shape, or form or if the use of this work in some way would negatively impact a potential market for the copyrighted work. A few questions to remember throughout this process include:
The safest option when using a copyrighted to is to obtain permission from the author whenever possible. In many cases the authorization may be either written or verbal but it is a best practice to try and obtain written authorization either in letter or email format.
Additionally, the Copyright Clearance Center (http://www.copyright.com/get-permissions/) facilitates the search and seek of permission from CCC, a global rights broker for books, journals, blogs, movies, and more.
One of the most important considerations that weighs heavily in favor of fair use is when the use of a work is "transformative."
At its most basic, the intent is that if a new use of a copyrighted work does something different with the work, rather than replacing it, then it has been transformed. If a use of a copyrighted work simply replaces the existing work, then it is a "copy." When the use of the copyrighted work "transforms" the original into something new, then it moves beyond the copying/reproduction of the work.
This is especially critical as the transformative use of a work does not cause market harm to the copyright holder, even if they could have been paid for the work, because the use of the work is no longer a substitute for the original. It has been transformed into something new.
The Fair Use Checklist developed by Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville) now maintained by Columbia University Libraries provides a convenient approach to assist users of copyrighted works in determining if their activities are within the limits of fair use as specified under U.S. copyright law (Section 107 of the U.S. Copyright Act). The following statements are adapted from the Columbia University Libraries website.
BENEFITS OF USING THE CHECKLIST
A proper use of this checklist should serve two purposes. First, it should help you to focus on factual circumstances that are important in your evaluation of fair use. The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis. Second, the checklist can provide an important mechanism to document your decision-making process. Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project. Keep completed checklists on file for future reference.
THE CHECKLIST AS A ROAD MAP
As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns. Some checked boxes will favor fair use and others may oppose fair use. A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use. This is not an exercise in simply checking and counting boxes. Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use. Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.
CAVEAT
This checklist is provided as a tool to assist you when undertaking a fair use analysis. The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair. Each factor should be given careful consideration in analyzing any specific use. There is no magic formula; an arithmetic approach to the application of the four factors should not be used. Depending on the specific facts of a case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.
The following resources may be helpful to you in understanding fair use and the four factor test:
This document from the Association of Research Libraries provides guidance for academic libraries on fair use.
The U.S. Copyright office offers a continually updated index of lawsuits addressing fair use.
Stanford Libraries have an excellent resource on development in fair use law.
The Association of Research libraries published an info-graphic on the myths and facts of Fair Use in February 2017.
The Harvard university Office of Scholarly Communication published a clear info-graphic on Fair Use in 2017. This information is valuable for anyone seeking additional information on Fair Use.
This checklist can help you weigh the different sides of a four-factor fair use analysis.
These codes can assist you in determining if your use of a work has a preexisting code of best practice already established such as for sound recordings, journalism, online video, use of images, etc.
Inside Higher Ed article discussing the Georgia State e-reserves federal lawsuit on copyright violations. Topics include the standard of 10%, the four factors of fair use, and future implications for instructors and librarians.
