Copyright Resources to Support Publishing and Teaching

From Copyright Resource Center - The Ohio State University

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.  See 17 U.S.C. Section 107.  Common situations under which fair use may apply include criticism, comment, news reporting, teaching, scholarship, and research.  Four nonexclusive factors are the guideposts as to whether a use is fair.  These factors include: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the original work that you are using, and the effect of your proposed use on the potential market for the original work that you are borrowing from.

According to Section 107 of the U.S. Copyright Act, under certain circumstances, utilizing limited amounts of in-copyright works ". . . for purposes such as criticism, comment, news reporting, teaching (including multiple uses for classroom use), scholarship, or research is not an infringement of copyright."  Fair use is evaluated by reviewing and balancing four statutory factors:

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

Whether a use is "transformative" is not mentioned in the fair use statute, but it is a critical inquiry under factor one of the fair use analysis - the purpose and character of your use.

If a work is "transformative" that means that it casts the original material in a new light, it is not simply a mechanical copy of the original work utilized for the same purpose.

Transformative uses are more likely to push factor one in your favor because they add new information, meaning, and context to the original work you are borrowing from. 

Some questions to ask when assessing whether your use is transformative:

• Am I making a mechanical copy, or am I changing something fundamental about how the original work was presented?
• Am I utilizing the work in the same way that the original was used to compete with the original work?
• Am I adding new meaning or understanding to the original work by incorporating it into mine?

 

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

1. Are you using the material for academic, educational or non-profit purposes? 
   • Generally, educational purposes are viewed more favorably under fair use than for-profit uses that have the potential to compete with the original work.
   • Is the use ”transformative?”  In other words are you creating something new or are you simply reproducing the material without adding anything to it? Are you using the work in the same way that the original was used, or are you using the original with a fundamentally different purpose or character? 
   • Are you commenting on the original work, interpreting it, or criticizing it?  Or are you simply reproducing it for illustrative purposes?
   • Generally, creating something new or presenting material in a new light is more likely to fall under fair use than reproducing material without any changes.
2. Is the work you are borrowing from creative or purely factual? 
   • Generally, the use of factual works is more likely to be fair than the use of creative works which are closer to the core of what copyright protects.
   • Utilizing published works makes it more likely your use is fair than utilizing unpublished works.
3. How much of the original work are you using?
   • Are you using only limited portions of the book, video clip, or image?
   • If you are using an entire image are you reproducing it in thumbnail / gray scale / low resolution?
   • Generally, using lesser amounts of the original work is viewed more favorably under fair use than is using large portions of text that would serve as a substitute for the original work.  
4. How will your use of the original work affect the market for that work?  
   • If the copyright holder of the original work is likely to be financially harmed by your use of the material, than your use is less likely to be viewed as a “fair use.”
   • Is their a robust licensing market for the original work?
   • Would using the original work in the way you envision obviate the need to purchase a license?  If so, your use is less likely to be a fair use.
   • Would your use offer a competing substitute for the original? If so, it is less likely to be fair.
   • Is your proposed use something that the rights-holder would typically charge for?  If so your use is less likely to be a fair use.
   • Will you be limiting the way you share your new work by time and audience to limit market effect of your use on the original work?  If so your use is more likely to be a fair use.

The purpose of this guide is to provide resources and information for resolving copyright questions. This research guide is for educational purposes only, and is not legal advice.

• Association of Research Libraries - Code of Best Practices for Fair Use
• American Library Association - Public Domain Slider
• American Library Association - Fair Use Evaluator
• Harvard infographic on Copyright and Fair use
• Stanford University - Copyright and Fair Use
• University of Minnesota - Thinking Through Fair Use
• Ohio State University - Copyright Resources Center
• U.S. Copyright Office - Fair Use Explanation

Evaluating fair use requires a review of the four fair use factors on balance

• You do not need to meet all of the factors for your use to be considered fair
• Generally, the more factors that weigh in your favor the more likely it is that your use is fair
• Fair use is highly fact and case specific
• Each determination of fair use is done on a case-by-case basis
• While educational uses such as teaching, scholarship, criticism, and commentary are typically favored under the law, not all educational uses are presumptively fair 
• While factor one may weigh in your favor for most academic or scholarly pursuits, the inquiry does not stop there!  All factors must be reviewed in turn and given their due weight
• 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 is necessary to illustrate your point
• It is a common myth that any use under 10% of a work or under 100 words is always a fair use
• If the work that you are borrowing from has a healthy licensing market for uses similar to your proposed use, it is less likely that your use is "fair"
• Calling a use a fair use without performing an analysis does not make it one