Copyright for Extension Faculty and Staff: Fair Use
 

The Four Factors

We recommend the Fair Use Checklist (Columbia University) for analyzing whether your proposed use is fair. 
Educational use alone does not make a use "fair". All four factors must be weighed together.

Section 107 of the copyright law lists the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. the nature of the copyrighted work; (fiction/creative or nonfiction/factual)
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. the effect of the use upon the potential market for or value of the copyrighted work.

What are some examples of ways copyrighted works can be used under the  fair use exemption?

You can use small portions of a copyrighted work to comment and illustrate a point, report news, do research or scholarship, criticism or parody.

How much of a work can I use safely?

There are no amounts or percentages in the law. When using copyrighted work, use the least amount necessary. Various guidelines mention specific percentages or amounts, but these percentages are not written into the law.  Copyright scholars seem comfortable with approximately 10% of a work. If however you have chosen the "heart of the work," a much smaller amount might fail the fair use test. The "heart of the work" of a book might be the pages with the key turning point of a story or the revealing motivation for a person's action. For a song, it might be the 4 second refrain that is recognized worldwide, across generations. A larger amount may be allowed for parody.

What is transformative use?

Think of this along with your first fair use factor. The nature of the use may be commercial or nonprofit, and nonprofit uses are always considered more favorably. If what you do with the copyrighted work adds new meaning, brings new value, or repurposes a work, you have transformed it beyond its original use. The problem with transformative work is that you may think a use is transformative, but the judge may not. It is not always predictable. Stanford University has some examples to illustrate successful and unsuccessful transformative work.

Fair Use Checklist (Columbia University)

Fair Use Evaluator (American Library Association)

Statements on Fair Use in Music (Music Library Association)