Fair use is a very important limitation on a copyright owner's rights and it is probably the limitation of greatest interest and concern to librarians and to educators, certainly one that is heavily relied on. It's also one of the most misunderstood and often misinterpreted provisions of copyright law. Understandably, it's a somewhat complex area of law. The big reason that it is so easy to misunderstand or misapply fair use is because fair use, by definition, doesn't really have any black or white lines.
The purpose of fair use is to serve as a flexible tool that can be used to help maintain the balance in copyright law, which is balancing the rights of a copyright owner with the rights of others to use that owner's protected works. Because there are very few limitations on a copyright owner's rights in the statute itself, fair use is kind of a big safety net that allows uses of a work in situations where allowing the use would go further towards promoting the purpose or goal of copyright law than would disallowing the use. That is the ultimate question of fair use. Would allowing this use go further towards promoting the goals of copyright law that would disallowing the use?
Technically, fair use is a defense so it comes up only if the work would otherwise infringe a copyright. In other words, if your use fits under one of the statutory exemptions of the Copyright Act, such as section 108, which is directed towards libraries and archives, then you're done. You don't ever get to the fair use analysis. You go to fair use only if there's nothing else in the law that allows you to engage in the use in which you want to engage.
The analysis of fair use is made on a spectrum. The analysis involves four factors. A court may consider additional factors if they think they're relevant, but must consider four that are spelled out in the statute. Each of those factors is determined on a spectrum. Sometimes, there's a clear yes or no, but most often, there's not. The overall analysis is also determined on a spectrum. The factors are to help guide making a determination of whether something constitutes a fair use.
It's not just a matter of adding up how many factors go against or in favor of a fair use and saying, "Three went against fair use therefore, it's not fair use." You have to look at the whole, big picture. It is possible, and it has happened, to have a situation in which all four factors technically disfavor fair use but a court will hold the use to be fair nonetheless because, again, it goes further towards promoting the purpose of copyright than would not allowing that use.
Those four factors are: the purpose and character of the use that you're making of the work, and that looks at whether, on a spectrum, your use is closer to being non-profit, educational in nature or closer to being commercial in nature. This is not about what kind of entity you are. It's about the particular use that you are making. Just because you're using something within a school setting doesn't mean that it's necessarily an educational use. This factor also looks at whether your use is transformative.
A transformative use is one that uses the work in a different way than the work has been used, the original use intended for the work. It's not about whether you're transforming or changing the work itself, but whether you're using it in a different way. An example would be a parody. In a parody, you use a work to make fun of something about that work, to make a statement about that work in a humorous way. That is a transformative use. A transformative use would have this factor favor fair use and a use for educational purposes would have this factor favor fair use.
The second factor is the nature of the work you're using. Fair use favors the use of works that are more factual in nature over works that are more creative in nature. The third factor is the amount and substantiality of the portion you're using of a work. This is not about only how much you're using, but it is about whether either the amount and/or, it's not either/or, but the amount and/or the portion that you're using is more than or something different than what you need to achieve your purposes. Even here, there's not just a simple quantitative limit. The question is are you using something more or a different part of the work than you need to to achieve your work?
The final factor is effect of the use, your use, on the potential marketplace for the work. This is not about whether you actually made money on your use or whether the owner actually lost money. It's a question of whether fair use, by definition, because it's based on the facts of your situation, if the same facts occur for somebody else, exactly the same situation, by definition, it's going to be fair use there as well as your use. The question on this final factor is if we allow that, if every time this situation arises and we allow this use, to what degree is that going to harm the marketability for this work?
The ultimate analysis must consider each of these four factors. Each of those is considered on a spectrum, not necessarily for or against. It might be slightly for or strongly for. The overall decision must look at the big picture, those four factors plus anything else that's relevant.
This lesson is designed to provide accurate and authoritative information regarding application of copyright law in schools. Nothing in this lesson is intended to constitute legal advice, and nothing herein should be considered legal advice. If legal advice is required, the reader should consult a licensed attorney in his or her own state. Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this lesson or the use to which it is put.