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Copyright Resources to Support Publishing and Teaching

A guide for faculty, staff, and students at Penn about how to obtain, manage, and understand copyright issues for their work

Additional Resources

Fair Use Explanation

From Copyright Resource Center - The Ohio State University

What is Fair Use?

Fair Use is a doctrine within U.S. copyright law that allows for some limited use of of copyrighted material without the permission of the copyright holder.  The circumstances under which fair use may apply include criticism, comment, news reporting, teaching, scholarship, and research. Four tests are involved: purpose and character of use, nature of copyrighted work, amount and substantiality of portion used, effect of use on potential market for copyrighted work.

What are the "Four Factors?"

According to Section 107 of the Copyright Act ". . . for purpses such as criticism, comment, news reporting, teaching (including multiple uses for classroom use), scholarship, or research is not an infringement of copyright."  Subject to the following four factors:

  1. The purpose and character of the use, including whether such a 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
  4. The effect of the use upon the potential market for or value of the copyrighted work

How to Use the Four Factors

Fair use is about balancing of the 4 factors

  • You do not need to meet all of the factors
  • The more you meet the better
  • Fair use is highly case specific
  • Therefore, you must do case by case analysis of every image, text, etc

Not all educational use is fair use. 

Using rules of thumb like certain percentages or numbers of words is not actually protected - it is a better idea to use only as much as necessary to get your point across and not rely on certain numbers or percentages

  • It is a common myth that any use under 10% or under 100 words is fair use

The 4th factor may not be the most important factor, but it is an incredibly important one

  • 4th factor dictates the risk you are taking on
  • If you are working on something that has a healthy market and a copyright holder (e.g., Disney) is making a lot of money, then you are putting yourself at greater risk


Questions to Ask When Assessing Fair Use

Some questions to ask that may help in determing whether a use is "fair use" would include"

  1. Are you using the material for educational or non-profit  purposes?  Generally educational purposes are viewed more favorably under fair use than are for-profit motives, and Is the use” transformative?”  In other words are you creating something new or are you simply reproducing the material without adding anything to it?  Generally creating something new is more likely to fall under fair use than reproducing material without adding to it?
  2. How much are you using? Are you using only portions of the book, video clip, or image? Generally utilizing less is viewed more favorably under fair use than using large portions of material.   
  3. Is the work creative or purely factual?  Generally the use of factual works is viewed more favorably than the use of creative works.
  4. How will your use affect the market?   If the copyright holder is financially harmed by your use of the material, than your use is unlikely to be viewed as a “fair use.”

What is a "Transformative" Use?

“Transformative” uses refer to the first factor and are looking for whether

  • New meaning created from use of content
  • New purpose pursued from use of content

Transformative uses are more likely a Fair Use

Some Questions to ask when assessing whether your use is tranformative:

  • Will incorporation of material help me to make my point?
  • Will my readers get the point better if I use the material?
  • Have I used no more than I need? (also relates to the third factor, but still useful for transformative uses)