Fair use is the right to use copyrighted material without permission or payment under some circumstances, especially when the cultural or social benefits of the use are predominant. It is a general right that applies even—and especially—in situations where the law provides no specific statutory authorization for the use in question. Consequently, the fair use doctrine is described only generally in the law, and it is not tailored to the mission of any particular community. Ultimately, determining whether any use is likely to be considered “fair” requires a thoughtful evaluation of the facts, the law, and the norms of the relevant community.
Fair use is widely and vigorously employed in many professional communities. For example, historians regularly quote both other historians’ writings and primary sources;filmmakers and visual artists use, reinterpret, and critique copyrighted material; scholars illustrate cultural commentary with textual, visual, and musical examples. Fair use is also healthy and vigorous in broadcast news and other commercial media, where references to popular films, classic TV programs, archival images, and popular songs are frequently unlicensed. Trade and academic publishers regularly rely on fair use to justify the incorporation of third-party material into books they produce.
Fair use is a user’s right. In fact, the Supreme Court has pointed out that it is fair use that keeps copyright from violating the First Amendment; without fair use and related exceptions, copyright would create an unconstitutional constraint on free expression. Creators, scholars, and other users face new challenges as copyright protects more works for longer periods, with increasingly draconian punishments and narrow, outdated specific exceptions. As a result, fair use is more important today than ever before.
Because copyright law does not specify exactly how to apply fair use, the fair use doctrine has a useful flexibility that allows the law to adjust to evolving circumstances and works to the advantage of society as a whole. Needs and practices differ with the field, with technology, and with time. Rather than following a prescriptive formula, lawyers and judges decide whether a particular use of copyrighted material is “fair” according to an “equitable rule of reason.” In effect, this amounts to taking all the facts and circumstances into account to decide whether an unlicensed use of copyrighted material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner.
The flexibility in fair use law can lead to uncertainty about whether specific uses are fair. However, fair use is flexible, not unreliable. Like any exercise of expressive freedom, taking advantage of fair use in education and libraries depends on the application of general principles to specific situations. The other tabs in this section provide helpful information about how to do this.
*This text is adapted from Adler, Aufderheide, Butler, and Jaszi's Code of Best Practices in Fair Use for Academic and Research Libraries.
Contributions from Brandon Butler
The text of 17 U.S.C. § 107, the fair use provision of the Copyright Act of 1976, reads:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phono records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
What on earth does all that mean? Well, on the face of it, none of it is terribly helpful in making particular fair use determinations, and it certainly doesn’t tell you exactly which uses will be fair and which won’t. As Judge Pierre N. Leval wrote in the Authors Guild v. Google decision:
The statute’s wording…does not furnish standards for recognition of fair use. Its instruction to consider the “purpose and character” of the secondary use and the “nature” of the copyrighted work does not explain what types of “purpose and character” or “nature” favor a finding of fair use and which do not.
Nor does the statute tell you exactly how to tell how much is too much to use under factor three, or how to determine the effect of the use on the market under factor four. And, these four factors are not exclusive—courts shall consider them, but they may consider others. The Supreme Court has said that the factors must be weighed together in light of the purposes of copyright. Courts have said repeatedly that the factors can’t be simply tallied together in a ledger. While some copyright “guidance” simply advises that you walk through the four statutory factors to decide whether your use is fair, the factors on their own simply are not very useful.
And what about the part that precedes the four factors, the so-called “preamble” that lists “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” as potential fair uses? While the list of favored purposes can be helpful, and encouraging, it is not a free pass. A use for teaching or research will still have to be considered on its own facts, weighing the factors together. So, neither the list of exemplary fair use purposes nor the four factors provides definitive guidance to a would-be fair user.
That’s not an accident—when Congress adopted this language in 1976, it meant to describe generally a broad area of discretion for courts, not to tie their hands. The real key to understanding how fair use works is knowing what courts have done with these factors. The remaining portions of this box describe some of the lessons scholars have drawn from examining fair use cases.
The history of fair use cases of all kinds shows that judges return again and again to two key analytical questions:
These two questions breathe life into the “four factors.” The first addresses the first two factors by telling you what purposes are favored and how to evaluate the nature of the work used, and the second tells you how to tell how much is too much under the third factor. Both key questions touch on the so-called “fourth factor,” whether the use will cause excessive economic harm to the copyright owner.
If the answers to these two questions are “yes,” a court is likely to find a use fair—even if the work is used in its entirety. Because that is true, the risk of a challenge to such a use is dramatically reduced.
Fair use ensures that copyright owners do not have a monopoly over transformative uses of their works. The converse is also true. When a use merely supplants a copyright owner’s core market rather than having a transformative purpose, it is unlikely to be fair. Thus, for example, a library clearly cannot acquire current books for its collection simply by photocopying or scanning published editions.
In the recent Google Books decision, Judge Leval suggested that even uses for transformative purposes may be unfair if they provide the public with access to enough of the underlying work to serve as a substitute on the market for that work.
In cases decided since the early 1990s, the courts have made it clear that in order for a use to be considered “transformative,” it need not be one that modifies or literally revises copyrighted material. In fact, uses that repurpose or decontextualize copyrighted content in order to present it to a new audience for a new purpose can qualify as well. The courts also have taught that the more coherent an account the user can give of how and why the material was borrowed, the more likely the use is to be considered transformative.
Examples may be the best way to get a sense of what sorts of uses are transformative. Here are some of the uses courts have found transformative:
In Sundeman v. Seajays the 11th Circuit court of appeals held that a scholar’s critical essay and lecture, which incorporated excerpts from an unpublished manuscript called Blood of My Blood, was transformative:
A reading of Blythe’s paper clearly indicates that she attempted to shed light on Rawlings’ development as a young author, review the quality of Blood of My Blood, and comment on the relationship between Rawlings and her mother. The “further purpose” and “different character” of Blythe’s work make it transformative, rather than an attempt to merely supersede Blood of My Blood.
Fair use guidance is often given in terms of how much one can safely copy from a given kind of work without permission–how many words, pages, minutes, or chapters, or what percentage of the whole can be taken without permission. Unfortunately, the law doesn’t really work that way, and there is no magic number or set of numbers that will guarantee your use is fair. This is because courts always consider both quantity and quality of the portion used, and they judge whether the amount is appropriate by looking at the context of the use.
That doesn’t mean you can’t tell how much is too much, though; it just means the answer depends on your context. But if you’re willing to think a little bit about your planned use, it is not difficult to know how much fair use will allow you to use for your purpose. Courts looking at amount generally consider two things:
Let’s take them in turn.
For the last 20 years or so, courts have been focusing more and more on the question of the user’s legitimate purpose. This is the first part of the fair use analysis, and once the courts decide your purpose is legitimate, that decision deeply colors the rest of the analysis. In particular, following the Supreme Court’s landmark fair use decision in the Campbell v. Acuff-Rose case, once courts find that a use is transformative, they consider amount primarily in terms of whether the amount used is appropriate to the transformative purpose. This determination is therefore context-sensitive, and the user is the best person to decide what amount is the right amount for their new use.
For example, a parody song like the 2 Live Crew take on Roy Orbison’s “Oh Pretty Woman” might appropriately use a substantial amount of the original song so that listeners will clearly understand the target of the parody. Or an illustrated history of the Grateful Dead might appropriately reproduce complete images of concert posters (but at a reduced size and resolution) in order to give the reader a sense of the band’s history. A search engine may need to copy entire works into its database to help researchers find relevant websites, but a “snippet” or a “thumbnail” would be the appropriate amount to actually reveal to the public for that purpose. Similarly, a “lexicon” for Harry Potter aficionados may quote relevant passages from J.K. Rowling’s stories to give a sense of the subjects it catalogs (monsters, spells, key characters and locations, etc.), but the court found that the author of the Harry Potter Lexicon went too far in taking lengthy narrative passages more appropriate to a short story collection than a reference book. The key in each case is to ask how your legitimate activity is different from simple copying, and to ensure you use an amount appropriate to your new purpose.
Importantly, the standard here is “appropriateness,” not “necessity.” Some guides to fair use mistakenly advise that only the barest minimum amount necessary to achieve a novel purpose will be protected under fair use, but that is not the law. Courts, including the Supreme Court, have said time and again that a fair user should have latitude to determine the appropriate amount for her use, and need not confine herself to a bare minimum.
Another factor, which is similar but distinct from the question of appropriate length for purpose, is whether your use provides the public with enough of the original work to serve as a market substitute for it. Generally speaking, when your use is for a novel purpose like criticism or commentary, there is very little chance that someone would use your work as a substitute for the work you quote. While it is common to use book reviews as a way to know whether to buy a book, no one reads book reviews instead of reading the book. The question of appropriateness to purpose intertwines with market substitution, here, because a use that provides a market substitution is highly unlikely to be appropriate to a genuinely new purpose of the kind fair use protects.
However, in some cases, legitimate new uses do involve copying a larger amount of the work, even the entire work, and it may be important to ensure in those cases that you prevent broad public access to copies that might compete unfairly with the original work. For example, some technological uses like text mining or the creation of a search engine involve wholesale copying of entire works, but that copying is done “behind the curtain,” so to speak—only a computer actually “reads” the works in their entirety. Or, in the case of images, it is often appropriate to reproduce entire images in connection with legitimate uses like search or criticism, but the size or resolution of the images can be reduced to avoid substitution for access to the images for ordinary consumption.
Perhaps the best sources of guidance about what constitutes fair use are the various best practices guides developed by practice communities, starting with documentary filmmakers in 2004. These statements combine core insights from courts—like the importance of a legitimate new purpose, and avoiding market substitution—with insights from practitioners about how to tailor legitimate fair uses that recur in their community. These guides replace the one-size-fits-all approach of numerical guidelines with a reasoned and nuanced approach tailored to context.
The Center for Media and Social Impact at American University has played a major role in developing many of these statements, and collects all of them on its website.
