Fair use

Fair use is the right to use in-copyright material without payment or permission, so long as the use is fair. Which uses are fair is a context-sensitive determination that can grow and evolve to accommodate new uses and technologies. Courts have found fair use in a wide variety of circumstances, from plagiarism detection software to unauthorized re-tellings of best-selling novels. The Copyright Act itself gives examples of fair use purposes, including criticism, comment, news reporting, teaching, and scholarship.  However, not every use for these purposes is necessarily fair. We created this short video to give a brief, common sense introduction to thinking about fair use:

Fair use in the courts

Courts must weigh four factors in considering whether any specific use is fair:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

Without additional information and context about the history of fair use, these factors can be confusing and difficult to apply. Many commercial uses have been found to be fair uses, for example, and some nonprofit educational uses have been found to be infringing, so even the first factor, which includes the most detailed information about possibly favored and disfavored uses (commercial bad! nonprofit educational good!), is not so cut and dried. Courts have also warned that considering the four factors is not a matter of simple arithmetic—you can’t just add up the factors that favor fair use and those that disfavor it and award fair use to the winner.

Luckily, many scholars have studied the way courts think about fair use, and they’ve found that courts’ fair use determinations are usually determined by just two key questions:

  • Was your use for a “transformative” purpose?
  • Did you use an appropriate amount relative to your transformative purpose?

The concept of “transformative” purpose was defined by the Supreme Court (borrowing from an article by Judge Pierre Leval) in its opinion in Campbell v. Acuff-Rose. There, the court said that the key question in evaluating a fair use purpose is determining:

whether the new work merely “supersede[s] the objects” of the original creation…, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.

A use “supersedes the objects” of the original creation if it simply makes the work available for the same purpose as it was originally created and sold. These uses aren’t fair because they interfere with copyright’s ordinary function: to permit an author to control and monetize their work in typical markets. A film festival promoter that uses a professional photograph of a cityscape to add visual interest to its website for an event in that city is ‘merely superseding’ the use of the photograph in a context where the photographer would ordinarily license the photograph, so no fair use. A museum’s use of a photograph of Eddie Van Halen playing his “Frankenstein” guitar in concert to highlight the design of his guitar serves a different purpose (showcasing the guitar, the subject of the museum’s exhibition, rather than Van Halen) and adds something new (the curation and context of the museum’s exhibition and catalog). Later courts have made clear that the “something new” doesn’t have to be a literal change to the work; instead, the key is that the work is used for a purpose that is different from its original purpose.

If your use is for a transformative purpose, then courts look to see whether the amount you have used or made available to the public is appropriate to that purpose. For example, in one case the court found that creating a “Harry Potter Lexicon” that helped readers understand key elements of the fictional world of the Harry Potter books was a transformative purpose different from the purpose of the original books themselves, but nevertheless it found that some of the Lexicon’s quotations from the novels were excessively lengthy relative to that purpose.

Fair use resources to share and reuse

The most useful resources for understanding fair use in particular practice contexts are the Codes and Statements of Best Practices that have been developed by practice communities in recent years. Grounded in the most common recurring contexts where fair use comes into play for these communities, they give concrete guidance on when and how fair use applies to recurring situations and how to find the line between fair and unfair use in these situations.

Fair Use for Nonfiction Authors – A free guide published by the Authors Alliance, a non-profit dedicated to supporting “authors who want to serve the public good by sharing their creations broadly.”

The Fair Use Index – Maintained by the Copyright Office, this index collects federal court opinions on fair use, with filters for different kinds of works.