Fair Use

Fair use is one of the exceptions in copyright which allows use of copyrighted materials without obtaining permission as long as the use can be considered fair.

There is a four-factor analysis which must be applied to each use to determine whether the use is fair. Each factor is given equal weight. The goal is to achieve a balance between the rights of the copyright holder with the rights of the public. Fair use is also technologically neutral so the same analysis may be applied to any medium.

It is important that the four factors be understood and applied diligently. Should someone claim that their copyright has been infringed, the court can reduce the amount of money damages if the alleged infringer can show that they understood the fair use analysis and made a good faith determination that their use was fair.

First Factor

Purpose and Character

The first factor addresses the character and purpose of the use of the work. The uses under Tipping Factor when combined with any of the uses in the Favors Fair Use column strengthens the balance in favor of fair use.

Favors Fair Use
Nonprofit
Teaching
Commercial

Tipping Factor
Teaching
Research
Scholarship
Criticism
Commentary
News Reporting

Favors Permission
Commercial
Entertainment
For Profit

Second Factor

Nature of the Work

The second factor looks at the creativity of the work. Creative works have more protection than factual ones, so the more creative a work is the less likely the use will be considered fair under this factor.

Fair use tends to favor published works more so than unpublished works. The rationale for this is that authors should be able to decide when to publish their work.

Favors Fair Use
Fact
Published

Favors Permission
Fiction
Unpublished

Third Factor

Amount

The third factor looks at the amount of the work that is being used. A small amount generally weighs in favor of fair use where a large amount would weigh more in favor of requesting permission. However, there are times when the use of even a small amount of a work can be too much if it can be considered the heart of the work. There are many published guidelines by various groups with specific amounts recommended, but they can be misleading. They can provide a false sense of security. Purdue University neither recognizes nor endorses any such guidelines. There is no magic number or formula which determines an acceptable amount.

Favors Fair Use
Small amount
Amount used is not significant to work

Favors Permission
Large amount
Amount used is heart of work

Fourth Factor

Market Effect

The fourth factor takes into account how the intended use would impact the market for the work. Generally, the more restricted the use, the less impact on the market. The use of some works such as standardized tests or workbooks are very rarely found to be fair use because the works are considered consumables which are meant to be purchased.

Favors Fair Use
No major impact
Licensing/permissions unavailable
Limited/restricted access to work
User/institution owns legal copy

Favors Permission
Major impact
Licensing/Permissions available
Work is made available to the world
Use is repeated or long term

Fair Use Analysis

The Analysis below can help frame the fair use questions. It is only to be used as a guide and not as a definitive legal answer to fair use. Every fair use analysis is based upon specific unique facts to a situation. Only the user can make a fair use determination since they will be the one to assume the legal risk.

The more factors that favor fair use, then the stronger the fair use argument is should there be a challenge. If the balance weighs in favor of fair use, then the work can be used without permission. However, if the balance weighs against fair use and other exceptions do not apply, then permission must be obtained to use the work. Please be aware that all educational use is not automatically fair use. The fair use analysis must be applied to each use of a work. Fair use is technology neutral, so the analysis may be used for any medium.