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Copyright: Using Copyrighted Material

Fair Use

What is Fair Use?
"Fair Use" is a provision of copyright law that allows us, under some circumstances, to use copyrighted material without first obtaining the author’s permission. Fair Use is intended to balance the rights of copyright holders with the interests of the general public.

Four factors are used to determine fair use of a work:

  1. The purpose of the use
  2. The nature of the copyrighted work
  3. The amount of the work used
  4. The effect on sales of the copyrighted work

Before using a work or portion of a work without obtaining permission, it is important to make a "good-faith" analysis of how these four factors apply to your situation. Failure to show good-faith may weigh against a claim of fair use in a court of law. All four factors must be considered and weighed, but there is no clear-cut formula for applying them. The table below describes more specifically what kinds of uses favor a claim of fair use, and those that do not. Even if one factor seems to weigh in favor of fair use, there may be other factors that weigh against your use without the author's permission. For example, you may be using the material for educational purposes, but on the other hand this use may inhibit sales of the work. In such a case, it would be wise to obtain the author's permission.

Fair Use Chart


Purpose

Favors fair use:

-Used for teaching, including multiple copies for classroom use

-Used for research, news reporting, criticism, comment

-Transforms nature of the work

Weighs against Fair Use:

-Used for commercial purpose
-Results in profit
-Used for entertainment
-Distributed to public
-Authorship not attributed
-"Bad-faith" behavior


Nature of Work

Favors fair use:

-Published work
-Factual or non-fiction in nature
-Important to educational objectives

Weighs against Fair Use:
-Unpublished work

-Creative work
-Consummable (e.g. an exercise book that a student writes in)


Amount Used

Favors fair use:
-Small excerpt, generally less than 10% of whole

-Portion used is not central or significant to the whole
-Amount used is appropriate for educational purpose

Weighs against Fair Use:
-Large excerpt or entire work

-Use of “the heart” of the work

 


Market Effect

Favors fair use:
-User owns lawfully purchased or acquired copy of original work

-Few copies made 
-Stimulates market for the work
-No significant effect on market or potential market for the work
-No similar product marketed by copyright holder
-No licensing mechanism in place for the work

Weighs against Fair Use:
-Could replace sale of copyrighted work

-Impairs market or potential market for copyrighted work
-Repeated use, when market exists for the work
-Licensing mechanism in place for obtaining copies or rights
-Affordable permission available for use of work
-Numerous copies made
-Repeated or long-term use
-Made work accessible on Web or other public forum

 

 

Permission

If Fair Use Does Not Cover My Use, How Do I Get Permission from the Author? 
If you are not confident that your use would favor a claim of fair use, then it is necessary to get permission from the author (or author’s agent) before you use the material. Some authors may freely grant permission to use the material as described. Others may offer permission but charge a royalty fee. Royalty fees can vary widely depending on the material and the intended use. Some authors may deny permission.

An excellent guide to the process of obtaining permission—including letter templates—is provided by

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