Fair Use Explained

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

Fair use is one of many limitations and exceptions in copyright. Specifically, “fair use” in the United States refers to a section of the Copyright Act (17 USC § 107), that lists some examples of fair use, and then four factors to consider in deciding whether a use is fair or not.

Many of the limitations in copyright are specific to particular uses — for instance, screening videos in classrooms, or interlibrary loan. Fair use, however, is broad and flexible — it can apply to any kind of user, from teachers to artists to researchers or companies — and it can apply to any kind of use, from making copies to public performances.

“Fairness” is a bit of a gut instinct, but the four factors help us think it through more carefully. To assess whether a use is fair, simply consider the question through the lens of the four factors. What is the original work being used for? What kind of work is the original? How much of the original work is being used? Is the new use substituting for or harming some commercial use the original rightsholder would want to make?

Spelling it out a little more, consider these:

Factor 1, the “purpose and character of the use”:

  • + Is the use for some strong public purpose, such as making works accessible to persons with disabilities? or for nonprofit teaching? That’s a “plus” for fair use!
  • + Does the use transform the original, by making a parody of it, or by adding significant commentary, or using it in a completely different context or way? That’s a “plus” for fair use!
  • – Does the use substitute for the original rightsholder’s economic use? That’s a “minus” for fair use.

    This factor is the most important factor , and the one on which all the others depend and relate to.

Factor 2, the “nature of the original work”:

  • Is the original work published, or unpublished, as in a draft manuscript or private letters? If it’s unpublished, that’s a “minus” for fair use — but it’s not an automatic NO. If your use is transformative, such as using unpublished letters in a biography or news article, it can still be fair use!
  • Is the original work highly factual, like a news article, or a collection of factual information? The facts themselves are not copyrighted — so they can be used — and a work that is highly factual may have a “thin copyright”. The more the use is of factual information and ideas, the more of a “plus” that is for fair use. The more the use is of the creative expression of a work — the original words, the colors or design — the more of a “minus” that would be for fair use.

    The second factor is often considered to be the least important factor. But watch out — it can become more important if the use substitutes for the original use and harms the market. For instance, if Jane Q. Reporter scoops an upcoming memoir, by sharing the manuscript or key parts of it, before the memoir is actually published, causing the publisher and author to lose serial publication royalties or other revenues — that kind of factor 4 “market harm” is made worse because of the unpublished nature of the work.

Factor 3, the “amount and substantiality…used”:

  • How much of the original work is being used? One easy way of thinking about this is that less is more — more likely to be fair use.
  • BUT if the second use is highly transformative, then a fair use is whatever amount is reasonably necessary for the purpose. For example, for a parody, the user may only need elements of the original. To index a work for a full-text index, though, or to “format shift”, the whole thing might be needed.
  • “Substantiality”, the “heart of the work”: Occasionally, a new use may rely just on a small portion of an original work, but that portion is the most commercially valuable part of the work, or may disproportionately affect the original’s market. If the portion that was taken was the “heart of the work,” then that would be less likely to be fair use.

    NOT CORRECT: Guidelines specifying some specific quantity, such as “10%”, three lines, 250 words, or “30 seconds”, do not represent fair use. Courts have repeatedly rejected such fixed quantities, because the amount that can be taken depends on the purpose, the original work, and the effect on the market — the other three factors.

Factor 4, the “effect on market for or value of the original work”:

  • The fourth factor used to be described as the most important factor, before courts started considering the purpose of the use more carefully. Now, courts consider the fourth factor to be quite important, but look at in context of the purpose of the new use. If the new use is transformative, then it is much less likely to substitute for the original use in a way that causes market harm to the original. So, consider whether the purpose and character of the new use is quite different from the original, or if the new use, if many people did it, would harm the original.

Teachers and Academics

Teachers and academics, take heart! Of the six examples of “fair uses” listed in Section 107, five of them relate to teaching and scholarship: “Criticism, comment … teaching (including multiple copies for classroom use), scholarship, … research”. Those uses, when reviewed under the four factors, each have aspects that make it more likely they will be fair use. (But you still have to work through the analysis, and apply the factors to your particular facts.)

And, the Copyright Act includes a special protection just for educational nonprofits and libraries: a get-out-of-jail-free card (17 USC 504(c)(2)). If nonprofit educational institutions or libraries, or their employees, reasonably believe a use is fair, but the use is later found to not be fair use — Section 504(c)(2) says that those educators and librarians do not have to pay the skyhigh “statutory damages” that others might be found liable for. That means that as long as academics are considering fair use, reasonably and in good faith, Congress has their backs.

Educational institutions and libraries have numerous other specific protections as well, such as the right to screen films face-to-face. But it’s important to remember that educational uses are particularly favored in fair use calculations. This makes sense, since the Copyright Act is intended to encourage learning and education.

Learn More

We include below a number of our favorite resources that may be helpful in understanding fair use, or thinking about how fair use applies to a use you have made of a work, or a use that was made of one of your works.

Two other explanations:

One of the best ways to learn about fair use is by reading cases. The fair use factors were developed over time, by courts deciding what was “fair” and what was “infringing”. So reading cases is a way to see how judges apply the four factors in particular situations. Remember, however, that fair use is always case-by-case, so different facts can be critically important.

  • Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) – The US Supreme Court held that 2 Live Crew’s song was a fair use parody of Roy Orbison’s “Pretty Woman.” In this case, the US Supreme Court adopted “transformativeness” as a major factor.
  • Sony v. Universal City Studies, 464 U.S. 417 (1984) – The US Supreme Court held that making VCRs (“VTR” at the time) so users could record TV shows to watch them later was a fair use.
  • Harper & Row Publishers v. Nation, 471 U.S. 539 (1985) – The US Supreme Court held that when The Nation published excerpts of President Gerald Ford’s memoir, pre-publication, it was not a fair use, because the memoir was unpublished and the publication of the excerpts caused significant market harm.
  • Authors Guild v. Google – Google indexing the full-text of books and displaying snippets in response to searches is a fair use, because indexing is highly transformative and does not substitute for the original use.
  • Suntrust Bank v. Houghton-Mifflin – An author who rewrote Gone with the Wind from the perspective of Scarlet O’Hara’s enslaved half-sister made a fair use, because The Wind Done Gone was a parody of the original, highly transformative and critical.
  • Read more cases!

Section 107, annotated

Section 107 is humanly readable. But, we thought it might be helpful to provide an annotated version.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work,Section 106 and 106A specify the rights of the copyright holder.
including such use by reproduction in copies or phonorecords 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,Examples!

IMPORTANT: Not every example of “criticism” or “news reporting” or “teaching” is necessarily fair use. This list means that these are the kinds of uses that are often found to be fair use.

It’s also not an exclusive list, because Section 107 says “for purposes such as …” — meaning, other uses can also be fair use! Such as, making copies accessible to persons with disabilities, or developing full-text search engines.
is not an infringement of copyright.“[N]ot an infringement” is another way of saying that fair use is a right. In fact, fair use is often said to be one of the ways that copyright law accommodates the First Amendment.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—Note that the statute says “shall include“. We have to consider these factors, but if there are other important facts that don’t fit into the four, those facts can also be considered!
(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 four factors! All the factors are equal, but some of them are more equal than others: The first is the most important in courts today, and the fourth is also quite important. Nobody thinks the second is that important.
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.Congress added this last sentence after a court decided that a biographer of J. D. Salinger infringed copyright by quoting from Salinger’s private letters. After biographers and historians complained about the effect on scholarship of the Salinger case, Congress wanted to make it clear that unpublished does not necessarily mean infringing.

More writings on Fair Use: