[T]he fair use of a copyrighted work . . . is not an infringement of copyright.
Fair use gives users the right to use copyrighted material without permission under certain circumstances. If a use is fair, the user need not notify or seek permission from the copyright holder.
Illustrative Purposes
Section 107 of the Copyright Act gives examples of purposes that are favored by fair use: “.” Use for one of these “illustrative purposes” is not automatically fair, and uses for other purposes can be fair. The statute lays out four factors to consider in deciding whether a particular use is fair.
Four Factors of Fair Use
Each of the four factors has subfactors that influence how the factor weighs in favor of or against fair use. On its own, no individual subfactor guarantees that a use is fair or is not fair. The subfactors must all be weighed together.
First Factor: Purpose and Character of the Use
The first factor is one of the most important of the four factors.
Less Likely to Be Fair
More Likely to Be Fair
Second Factor: Nature of the Copyrighted Work
The second factor typically is the least important of the four fair use factors.
Less Likely to Be Fair
More Likely to Be Fair
Third Factor: Amount and Substantiality
Less Likely to Be Fair
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Using the heart of the work: Using the “heart of the work” weighs against fair use. This doctrine also comes from the Harper & Row case mentioned above. The news magazine in that case used a very small but very important part of President Ford’s memoir. It was the part of the memoir where he discusses his decision to pardon President Nixon, one of the most important decisions of his presidency. Using that part of the book weighed strongly against fair use because it was such an important part of the book.
Neutral
Fourth Factor: Effect on the Market
The fourth factor is one of the most important of the four factors.
Less Likely to Be Fair
More Likely to Be Fair
Examples
- Art criticism that requires reproducing the art is often fair use. An example of art criticism that requires reproducing the art is Arthur Lubow, “A Portrait of America That Still Haunts, Decades Later,” The New York Times, June 12, 2020, sec. Arts.
Fair Use in Seven Words
Fair Use Checklist
We are considering retiring the Fair Use Checklist and recommending the list of factors and subfactors above instead. Please contact us at copyright@psu.edu if your unit at Penn State still uses the checklist.
You can use the PSU Fair Use Analysis 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. Download the Fair Use Analysis Checklist PDF or the Fair Use Analysis Checklist Word Document.
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:
- Review your analysis/checklist. How can you change your planned use to turn it into a fair use? Can you reduce the amount of material or replace the material with material that’s more likely to be a fair use?
- Use openly licensed (e.g., Creative Commons) or public domain material instead.
- Obtain permission from the copyright holder.
Fair Use at Penn State
Review the PSU IP Policy regarding Fair Use.