The "Fair Use" Exception
What are the guidelines for fair use?
- Allows limited use of copyrighted material without requiring prior permission from the copyright holder.
- Protects the copying of a limited amount of copyrighted material for a limited and "transformative" purpose.
- The two broad categories of fair use are (1) comment or criticism (this includes teaching) and (2) parody (I suppose this could be teaching too).
- Comment and Criticism
Commenting upon or critiquing a copyrighted work--for instance, writing a book review. Some examples of commentary and criticism include:
quoting a few lines from a Bob Dylan song in a music review
summarizing and quoting from a medical article on prostate cancer in a news report,
copying a few paragraphs from a news article for use by a teacher or student in a lesson.
The underlying rationale of this rule is that the public benefits from review, commentary, and education which requires quoting some of the original work.
Ridicules another, usually well-known, work by imitating it in a comic way. Unlike other
forms of fair use, a fairly extensive use of the original work is permitted in a parody in order
to "conjure up" the original.
Fair Use Factors
- No hard-and-fast rules: general rules and varying court decisions.
- The statute lists four factors to be weighed to determine whether the use is a fair one.
- All factors must be considered although all factors do not have to be in
favor of a use to make it a fair one.
- See WCC Rules of Thumb
for fair use guidance.
- Cornell University has developed a
Fair Use Checklist (PDF) that is also helpful.
When you are trying to do this analysis, remember:
All four factors interrelate and must be evaluated in conjunction with each other.
- Purpose and Character of the Use
- Is the proposed use for commercial or nonprofit educational use?
We do pretty well on this one, but if you want to sell your coursepacks for more than they cost you,
- This factor is more likely to weigh in favor of fair use if the use is transformative rather than
verbatim copying. That is, if you write some commentary on it, or make cross-references in the
- Nature of the Copyrighted Work
- Is the work you want to copy more factual in nature (scholarly, technical, scientific, etc.) or
more creative expression, such as plays, poems, fictional works, photographs, paintings?
- Some things are really clear, but the line between unprotected "facts and ideas," on the one hand, and
protected "expression," on the other, is often difficult to draw. If you think the work is not original
enough for copyright, try to imagine how the author feels about it.
- Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
- The larger the amount you copy, the less likely it will be a fair use.
- So how much is OK? You'll have to ask the judge, who judges each case on its specific
facts. There are Rules of Thumb, but you'll never really know until you win or lose the case.
- Even if you don't copy much, if you copy the most important part, i.e., "the heart of the
matter," you could be infringing. This is the "heart of the matter" doctrine.
- The Effect of the Use on the Market for or Value of the Copyrighted Work
- What is the effect of the your copying and using the work on the publisher's market? How about if
what you are doing became widespread?
This factor is often cited as the most important of the four. Remember Article I, Section 8 of the
U.S. Constitution? The government wants to protect monetary profit from creative work so as to
encourage more of it.
Good Faith Fair Use
When you are trying to convince the copyright owner or the judge that you thought you were using
the work under the "fair use" exception, "good faith" helps.
The courts have actually come up with six "good faith factors:"
The first three factors are essential to the "good faith" test. The last three are very helpful.
- Copying by faculty or College employees (that's you)
- Solely for educational purposes (your classroom)
- Excerpts are fairly short (very important)
- Modified with commentary, annotations, etc. (this helps)
- Copyright notice included (this helps)
- Price for coursepack no more than copying cost (no commercial benefit)
Brevity and Spontaneity Rule
Another good faith indicator is often called the "brevity and spontaneity rule."
If you are on your way to class and you just happen to run across an excerpt (a short excerpt)
which is on point and would be helpful to the class, you copy it and take it with you to distribute.
Note: You can only claim this one time with any certain excerpt (remember spontaneity).