So, what is “fair use”?

Fair use is a case-by-case test found in copyright law.

When met, it allows a 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.

Basic Concepts

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!”

What is Fair Use

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.

Fair Use Factors

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 Analysis

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.

Outro

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,