Fair Use Overview
One of the rights granted the owner of copyright is the right to reproduce or to authorize others to reproduce the work. This right is subject to certain limitations found in the Copyright Act of 1976 (title 17, U. S. Code). One of the more important limitations on the copyright owner’s right to reproduce or to authorize others to do so is the doctrine of “fair use.”
Though the courts have considered and ruled upon the fair use doctrine in a substantial number of decisions over the years, no real definition of the concept has ever emerged. Indeed, since the doctrine is deemed an “equitable” rule of reason, each case raising the question must be decided on its own facts, and no generally applicable definition is possible. On the other hand, the courts have evolved a set of criteria which, though in no case definitive or determinative, provide some gauge for balancing the competing “equities”. These criteria have been stated in various ways, but essentially they can all be reduced to the four factors Congress has codified in Section 107 of the Copyright Act.
Section 107 lists the various purposes for which the reproduction of a particular work may be considered “fair” (and thus neither legally infringes the copyright owner’s right of reproduction nor requires the owner’s consent to such reproduction), such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out the following four factors to be considered in determining whether or not a particular use is fair:
- The purpose and character of the use, including whether such use is of 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
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined.There is no specific number of words, lines, or notes that may safely be taken without the copyright owner’s permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The safest course before reproducing any portion of a copyrighted work is to get permission from the copyright owner. Neither University Counsel nor the United States Copyright Office can give this permission.
When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use applies to the situation. The FAIR USE ANALYSIS TOOL is meant to assist you in determining whether fair use applies.
Your final determination requires a subjective balancing of each of the four factors. You may find that some factors are more significant than others under the particular circumstances or that certain factors impact others. If you determine that the fair use defense applies to your intended use, briefly explain how you have arrived at this conclusion in the box below. Please note that the University appreciates that fair use assessment is not an exact science and requires only that you make a good-faith determination.
- Intellectual Property - Fair Use - Copyright Term and the Public Domain in the United States as of January 2013
- For further information, visit the Pace University Library's Copyright and the Online user webpage.