What is Fair Use?
Fair Use is an exception to copyright law that allows you to legitimately use copyrighted works under certain conditions and for certain purposes such as criticism, news reporting, teaching, and parody. Fair uses need neither permission nor approval.
Four Factors of Fair Use
The Fair Use Statute, Section 107 includes four factors for evaluation to determine if something falls under an allowed “fair use.” The statute is purposefully broad to allow for interpretation and flexibility:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes [having an educational purpose weighs in favor of fair use; having a commercial one weighs against it]
- The nature of the copyrighted work [the scope of fair use is broader for factual works, like meeting minutes, than for highly creative works, like songs].
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole [using more of a work is less likely to qualify as fair use, but even using the entire work is sometimes fair].
- The effect of the use upon the potential market for or value of the copyrighted work [uses that provide a substitute for the original work are less likely to be fair; uses of works that are out of commerce are more likely to be fair].
And the section concludes: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
When Does Fair Use Apply?
Fair use favors “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, [and] research.” Many educational uses, but not all, are fair use. Although most commercial uses aren’t fair uses – many are. Every single use without permission of a copyrighted work should be evaluated for fair use.
There aren’t any hard and fast guidelines regarding what quantity is okay – despite the rumors you may have heard.
TIP: Students should think about whether their fair use determinations might change in the workplace – will their use be a commercial use? And does that change the outcome of the fair use analysis?
Fair Use Checklist
See the PSU Fair Use Analysis Checklist and download the PDF for reference. Use the checklist to help analyze whether a use of a copyrighted work could be a fair use. No single item or factor is determinative of fair use.
What if My Use isn’t a Fair Use?
If a planned use isn’t a fair use and doesn’t fall within another exception, you have options:
- Permission may be sought and granted from the copyright holder.
- Review your analysis/checklist – how can you change your planned use to turn it into a fair use?
- Reduce the amount of material or replace the material with media that’s more likely to be a fair use.
- Use openly licensed (i.e., Creative Commons) or public domain media in its place.
Other Fair Use Resources
Fair Use in Teaching and Research
Fair Use at Penn State
Review the PSU IP Policy regarding Fair Use.