What Is Fair Use?

In the copyright law of the United States, fair use is an exception to the exclusive rights granted to the author of creative work.

When fair use applies:

  • People can use parts of the work.
  • There is no need to ask for permission to the work owner.
  • There is no need to compensate the owner.
  • The act of copying does not classify as a copyright infringement.

Examples of fair use

Fair use only applies under some specific circumstances.

Examples give us a better grasp of what it stands for:

  • criticism
  • comment
  • parody
  • search engines
  • news reporting
  • teaching
  • research

This is not an exhaustive list. How do you know when something qualifies for fair use?

How to know when fair use applies?

There is no general rule for categorizing the usage of work as fair use. It is assessed on a case by case basis.

Four factors make you ask the right questions. They are all defined in the Copyright Act of 1976.

There is no need to satisfy for all factors to qualify for fair use. However, satisfying only one of them may not be enough.

Factor 1: Purpose and character of the use

Questions to ask:

  • Is the new use of the work nonprofit or commercial?
  • Is the new use transformative?

Copying work for commercial purposes makes it most likely to fall out of the scope of fair use. However, copying work without profit does not make it fair use.

To defend the case of fair use, one must be able to demonstrate it advances knowledge or adds something new to an artwork. The more is it “transformative”, the more it applies for fair use.

Factor 2: Nature of the copyrighted work

Questions to ask:

  • Is the original work factual or creative?
  • Is it published or unpublished?

Remember from our introduction to copyright that copyright does not protect facts and ideas. The more factual the original work (eg the description of a historical event), the less likely it is protected.

Factor 3: Amount and substantiality

Questions to ask:

  • How much of the original work is copied?
  • How essential are those elements?

The lower the quantity of copied work, the more likely it qualifies for fair use. One must use the least amount of copied work to fulfill the purpose.

Factor 4: Effect upon work’s value

Questions to ask:

  • How does the act of copying affect the original work?
  • Does the use compete with the original work?

The fourth factor takes into account the current market as well as the potential or future one. If the use of a work has a negative effect on the market or if it competes with the original work, it might not classify as fair use.

Fair use policy

Some platforms on the Internet, such as Twitter, publish a fair use policy. It explains to their users, in simple terms, what fair use is and how it applies to their products or services.

What is a fair use disclaimer?

A fair use disclaimer is a short statement that lets your audience know you are using work protected by copyright and that you are doing so under fair use.

Best resource to learn more about fair use

Fair use by the Stanford University Libraries