What is Fair Use? (Simplified!)

This coffee break activity focuses on these learning objectives.

Let’s start with this common scenario for faculty, staff, and students alike:

Learn about fair use! Remember, as we learned in prior coffee breaks, it can be unlawful to use copyrighted works of others without their permission, and violation of one of these rights is called copyright infringement. But the U.S. Copyright Act’s Section 107 provides a framework for “Fair Use,” which allows students and educators to use limited portions of copyrighted materials in limited ways without prior permission. This framework is outlined in four factors, which we will delve into more below.

But First! Fair Use Defined in Seven Words

Let’s start with an overview of fair use — in seven words! — by viewing this 2-minute video:

The Four Factors of Fair Use

Now that we’ve summed up “fair use” in seven words — “Use fairly. Not too much. Have reasons.” — let’s get into some specifics of those reasons. Whether or not a specific use falls under Fair Use is determined by four factors:

1. The purpose and character of your use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion taken
4. The effect of the use upon the potential market

However, if the copyright owner disagrees with your fair use interpretation, the dispute may have to be resolved by a lawsuit or arbitration. If it’s not a fair use, then you are infringing upon the rights of the copyright owner, and you may be putting yourself or the institution at risk. Our main guidance for fair use is understanding each of these four factors.

1. Purpose and Character of Use

Purposes that favor fair use include education, scholarship, research, and news reporting, as well as criticism and commentary more generally. This is where the phrase “educational use” is common — but arguing “educational use” is not a catch-all or fail-safe option for college staff and faculty! We have to consider the other factors of fair use, as well.

2. Nature of the Original Work

One element of this factor is whether the work is published or not. It is less likely to be fair to use elements of an unpublished work—which makes sense, basically: making someone else’s work public when they chose not to is not very fair. Nevertheless, it is possible for use of unpublished materials to be legally fair.

Another element of this factor is whether the work is more “factual” or more “creative”; borrowing from a factual work is more likely to be fair than borrowing from a creative work. This is related to the fact that copyright does not protect facts and data (although copyright does protect creative presentation of data, like infographics!). With some types of works, this factor is relatively easy to assess: A textbook is usually more factual than a novel. For other works, it can be quite confusing: Is a documentary film “factual” or “creative”—or both? Not every source is easily classified!

3. Amount and Substantiality of the Portion Used

Amount: This is an element that many guidelines give bad advice about. A use is usually more in favor of fair use if it uses a smaller amount of the source work, and usually more likely to weigh against fair use if it uses a larger amount. But the amount is proportional! So a quote of 250 words from a 300-word poem might be less fair than a quote of 250 words from a many-thousand-word article. But less is always more likely to be fair. Although there is no hard-and-fast rule or law about proportions or percentages of a work that would be considered “fair,” a general best practice or starting point is to aim for using 10% or less of a copyrighted work.

Substantiality: This element asks, fundamentally, whether you are using something from the “heart” of the work (less fair), or whether what you are borrowing is more peripheral (and more fair). It’s fairly easily understood in some contexts: Borrowing the melodic “hook” of a song is borrowing the “heart”—even if it’s a small percentage of the song!—and would not likely be considered “fair.” In many contexts, however, it can be much less clear.

4. Effect of the Use on the Potential Market

This factor can be challenging for the average person. But it can be thought of more simply: Is the use in question substituting for a sale the source’s owner would otherwise make—either to the person making the proposed use, or to others? Generally speaking, where markets exist or are actually developing, courts tend to favor them quite a bit. This is why using illegally uploaded files of copyrighted textbooks, in an otherwise well-intentioned reason to save students money, can be risky for educators and colleges.

Is This Fair Use?

Let’s pause and now put these four factors to use. To help you navigate thinking through these four factors, it may be helpful at this point to consult a checklist guide, such as this Fair Use Checklist from Columbia University Libraries (CC BY 4.0 license, with additional information about how to use this checklist here).

With this checklist guide in hand, let’s now review this video created by the TCC Library that explores a couple of sample scenarios where we may ask ourselves, “Is this fair use?”

• Scenario 1: I’d like to upload to Canvas a (copyrighted) journal article that I found on the internet. Is this fair use?
• Scenario 2: I’d like to link to a YouTube video from Canvas. Is this ok?

Now What?

If you determine that your planned use of a copyrighted work DOES fall under fair use, then it’s best practice to state that upfront! This demonstrates ethical best practices, and lets the student/user/reader know that you’ve thought about copyright and Fair Use. For example:

• Add a footer to a handout, slide presentation, or Canvas page where you’ve used the source. In the footer, include a brief citation or link for the source and a phrase like “Used under Fair Use guidelines”
• In an in-person or online training session, presentation, or class session, share out loud that you’re showing or using a copyrighted work under Fair Use guidelines and why
• Complete a Fair Use checklist — such as this Fair Use Checklist from Columbia University Libraries (CC BY 4.0 license) — and attach a copy of the checklist to a Print Shop request, to indicate Fair Use

If you determine that your planned usage of a copyrighted work does NOT fall under fair use, consider alternatives such as:

• Linking to the source available online or in a library database
• Summarizing the work in your own words and citing the source
• Using a smaller excerpt
• Using an openly licensed option that’s similar to the copyrighted work
• Contact your OER Librarian for additional options

Fair Use Vs. Open Licenses

Remember, all this talk about “fair use” and whether or not you need to think through the “four factors” only relates to potential usage of copyrighted works. If you use openly licensed works, then you don’t have to worry about fair use! You can use entire texts of openly licensed works, as long as you are abiding by the work’s open license (e.g. Creative Commons license), and if you provide proper attribution. Don’t worry, we’ll explore attribution in an upcoming coffee break.

References & Attributions

The OER Coffee Break series has original content and adaptations by Jennifer Snoek-Brown, OER Librarian, Tacoma Community College, and is shared under a Creative Commons Attribution-ShareAlike 4.0 International License, except where otherwise noted.

• Content adapted from:
  • “Introduction to Open Licensing” from Open Educational Resources: Basics & Beyond by Oklahoma Council for Online Learning Excellence (COLE) Member Volunteers, licensed under CC BY 4.0
  • “Fair Use” from Copyright and Fair Use for Teachers by Larysa Nadolny, Iowa State University Digital Press, licensed under CC BY 4.0
• Video source from “Fair Use in Seven Words” video by University of Virginia Library, Standard YouTube License
• Additional content sources from:
  • “Fair Use Checklist” by Columbia University Libraries, is licensed under CC BY 4.0
  • “Fair Use Fundamentals” infographic by Fair Use Week, Association of Research Libraries, is licensed under CC BY 4.0