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Copyright Law

Fair Use Doctrine

Fair Use refers to the conditions in which one may use a copyrighted work without receiving permission from the copyright owner. Fair Use allows for commentary, criticism, and parody.  There are four factors when evaluating if something applies to the fair use doctrine.

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.
  • Nature of the copyrighted work.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • Effect of the use upon the potential market for or value of the copyrighted work.

These factors are merely a guide and the courts have proven to be subjective. To invoke a legitimate Fair Use claim, more than one of the four factors should apply. A best-case claim occurs if all the factors can apply.  

See below for a broader description of each factor.

Purpose and Character of the Work

This factor examines whether or not a work is being used for commercial or non-profit purposes.  If the work is being used for non-profit purposes, there is a better chance that the work is being used under Fair Use.  

Nature of Work

This factor refers to whether or not the work is factual in nature.  One typical example that is given would be biographical information.  This type of information would be allowed under Fair Use because it is something factual as opposed to an original work.  If the facts come from a published work, it is more likely it would be covered under Fair Use.

Amount of the Work

This factor evaluates how much of the copyrighted work is used.  The less amount used, the better the argument to defend its use under Fair Use.  If you use the entire novel, short story, movie, it is hard to defend Fair Use.

Effect on the Work's Market or Value

This factor evaluates if your use of the copyrighted work affects any revenue or market value of the product.  For example, if someone makes copies of a pamphlet for an organization, that impacts the revenue that the copyright holder may make.  

Fair Use Tools

The following tools are offered as options for a person who wishes to utilize a protected work to help think through whether their proposed use is fair and to help create the paper trail required as a record of fair use decision-making. If the written exercises are retained they could be used as legal documents. Fair Use decisions are subjective and need to be made by the person utilizing the protected work. These tools will only work if the person working through the questions is completely honest.

American Library Association (ALA)

Fair Use Evaluator

The Fair Use Evaluator is an online tool that can help users understand how to determine if the use of a protected work is a "fair use." It helps users collect, organize, and document the information they may need to support a fair use claim, and provides a time-stamped PDF document for the users’ records.

 

Columbia University Libraries Copyright Advisory Services offers Kenneth D. Crews  Fair Use Checklist PDF as well.