So, what is “fair use”? Fair use is a case-by-case test found in copyright law. When met, it allows the use of a copyright-protected work without permission. For example, using a quote from a book in an article may be a fair use. The fair use concept is central to copyright law and helps promote freedom of expression and innovation.


Let’s look at some basic concepts. There is no formula to ensure that using a particular amount of a work will qualify as fair use. Also, it’s not as simple as declaring, “I think my use is fair!” While the law gives some examples of things that are traditionally fair use, not all uses that fall under these categories are actually fair uses.


And some specific uses that do not fall under these categories have been found to be fair uses. Fair use is a case-by-case inquiry. We have to analyze each use of a work. Essentially, fair use asks us to think through our actions. Federal law sets out four fair use factors. The first evaluates the purpose and character of the use.


An educational, noncommercial, or transformative use is more likely to be considered fair. A “transformative” use adds new purpose, meaning, or message not present in the original, as opposed to merely replacing the original work. A use that merely replaces the original use or purpose of the work is less likely to be considered fair.


The second factor considers the nature of the copyrighted work and will favor fair use if the work is factual or previously published. Here, consider copyright’s purpose to encourage creative expression by providing exclusive rights to authors. The third factor evaluates how much of the original work is used.


In addition, pay attention to the importance of what was taken from the work. Are you using a lot of the original work, or the “heart of the work”? Taking too much when not necessary is less likely to be fair use. The fourth factor analyzes whether the new use harms the existing or potential market for the original work.


Fair use requires an analysis of all the facts and factors. The factors may point in different directions and may not lead to a clear result. It is important when thinking about fair use not to jump to conclusions. Only a judge can make an official determination of fair use. This usually happens during an infringement case.


Sometimes it can be hard to rely on fair use, especially if there isn’t a lot of case law available. Finally, if you don’t know if a use is a “fair use,” you can always ask for permission from the copyright owner. If you decide to rely on fair use, be thoughtful and deliberate, and keep these core points in mind.


To learn more about how fair use is applied in different situations, visit the Copyright Office’s Fair Use Index.