Fair Use Overview

Fair Use – Overview and Fair Use – Explained (a deeper dive)

Fair use is the right to use copyrighted content, without permission. If a use is a “fair use”, then it is not a copyright infringement! No permission or notice is required; no apology is needed.

What kinds of uses can be fair uses?  All sorts of uses have been found to be fair uses by courts, from personal recording of TV shows, to sharing works with students in a class, to making parodies of songs and art and books, to sharing transcripts for news, to making search indexes for images, video, and the full text of websites and books.

There is no one category of use that is always fair use, and no one category of use that is never fair use. Instead, you consider at a number of common sense factors, and make a judgment call. The common sense factors include:

  • How are you using the copyrighted work? In particular, are you substituting for some commercial use the rightsholder might wish to make? Or are you transforming the rightsholder’s original uses for the work, by making a new work, or a new and different use of the work? Is there some public benefit to the use that you’re making?
  • What is the original copyrighted work? Is it a never-published draft that the author was about to publish? Is it highly factual, such that the copyright is a “thin” copyright?
  • How much are you taking? In particular, are you taking the most commercially valuable part of the work? Or the whole work in a way that substitutes for the rightsholder’s use?
  • Are you hurting the original rightsholder financially? Does the rightsholder already have a market for the use that you are proposing to make?

These questions are captured in the Section 107 of the Copyright Act, which codified the fair use test developed in the 1800s. For almost 200 years, copyright has required fair use to act as a balance, so that creators can profit from and control their copyrighted works to some extent, while also ensuring that critics can critique, teachers can teach, and new creators can make new works.

Fair use applies to all kinds of copyright uses — copying, distributing, performing, derivative works — and to all kinds of copyrighted works, from texts to software to art, music, and film.

Contact the Copyright Education Program (copyright@library.umass.edu) at the UMass Libraries to learn more about how fair use affects your teaching, scholarship, publishing, or learning.

More writings on Fair Use: