Copyright Fair Use

*Photo by Steve Jurvetson is licensed under CC 2.0. *

As I have discussed elsewhere, Congress has afforded the creators of original works with tremendous rights with regard to the use of their work. These rights, however, are not without limitations. (See 17 USC §§ 107-122).

The most significant and prominent of these limitations is known as “fair use” and can be found in 17 USC § 107. This limitation allows others to use, under limited scope and circumstances, protected works without incurring liability.

The Fair Use Two-Part Test

Determining whether a use constitutes fair use is often not straightforward. In evaluating the issue, courts will often utilized a two-part test.

The first part requires the evaluation of the purpose for which the protected material is being used. The Copyright Act of 1976 specifically states that the fair use of protected works does not constitute copyright infringement if used for purposes such as:

• Criticism

• Comment

• News reporting

• Teaching (including making multiple copies for classroom use)

• Scholarship

• Research

If the use does not fall into one of these categories, the test is over. Fair use does not apply.

If, however, the use does fall into one of the categories of purpose listed above, it does not necessary mean that the use is permissible. You must then move onto the second part of the test, which requires consideration of the following factors—quoted below directly from the statute:

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 work;
3. The amount and substantiality of the portion used in relation to the work as a whole; and
4. The effect of the use upon the potential market for or value of the work.

So, if the use falls into one of the stated permissible purposes in the first part of the two-part test and at least two of the four factors in the second part of the two-part test points to fair use, the use may be permissible.

The Seven-Question Analysis

Attorney Bradlee Frazer, in an article available online, encourages anyone who wants to utilize a protected work first to ask the following questions. I believe this is a good starting point for any such analysis.

1. Do I own the copyright to the work? (If the answer is yes, you can use it. The fair use analysis is unnecessary.)
2. If I do not own the copyright to the work, do I have the copyright owner’s permission to use the work? (If the answer is yes, you can use the work. The fair use analysis is unnecessary.)
3. If I do not own the copyright or have its owner’s permission, do I want to use the work for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”? (If the answer is no, fair use does not apply.)
4. Is the purpose and character of the use commercial or noncommercial? (Noncommercial uses are more likely to constitute fair use.)
5. What is the nature of the underlying work that I am reproducing? (Highly creative works generally qualify for stronger protections than less creative works.)
6. Do I want to use the whole work or just part of it? (The less of the work used, the more likely the use is permissible.)
7. Will my use of the work cause the owner of the copyright to lose money? (If the answer is yes, fair use is less likely to apply.)

If after asking these questions, it doesn’t appear that your intended use qualifies as fair use of the copyrighted material, you should probably refrain from using it.

Other Considerations

Not every use of protected material requires the protection of some exception or defense. The use of those things not entitled to protection cannot, through their use, result in liability for copyright infringement.

For example, using the title of a work or short phrases of around ten or so words found in a work do not enjoy copyright protections, even if the larger works of which they are a part do.

Facts themselves are also not entitled to such protection. So, using a plain list of facts—even if those facts are found in a larger work that does enjoy such protections—does not constitute infringement.

It is also important to note that simply giving credit to the author of the work does not automatically avoid infringement issues. Plagiarism is not the same thing as copyright infringement.

While limited use of protected materials with proper attribution in academic papers generally qualifies as fair use, the attribution itself is not what makes its use “fair.”

Copyright law can be complex and difficult to understand, and so it is important to secure the advice of a competent attorney whenever dealing with fair use issues.

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Sources:

Copyright basics

Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material

U.S. Code: Title 17

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See Also:

How to Secure a Copyright

Copyright Registration