Copyright & Fair Use: Fair Use

Fair use is a limitation to the exclusive rights of copyright holders that allows use of copyrighted material under certain conditions (more on fair use below). Does your use of others' material fall under fair use? The following questions (from Reclaiming Fair Use by Aufderheide and Jaszi, p. 24 & 135) can help with your fair use analysis:

• Was the use of the copyrighted material for a different purpose, rather than just reuse for the original purpose?
• Was the amount of material taken appropriate to the purpose of the use?
• Was it reasonable within the field or discipline it was made in?

These questions take into account more recent court decisions that have supported fair use.

In the past, educators have also used fair use checklists:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

See copyright law Chapter 1: Subject Matter and Scope of Copyright.

For a complete list of codes of best practices in fair use, visit the Center for Social Media & Social Impact at http://www.cmsimpact.org/fair-use.