LibGuides: Copyright and Intellectual Property: Fair Use

Fair Use Explained

Fair use is a statutory exception to the copyright holder's bundle of exclusive rights. It allows for the unlicensed (that is, without permission or payment of royalty) use of a copyrighted work where the balance of several factors weighs in favor of such use. Four of these factors are specifically enumerated in the statute. Application of fair use requires a factual analysis of these four factors as applied to the facts of the proposed use. Although no single factor is determinative, recent court decisions reveal that transformative use is an important consideration as is the potential harm to the market for the copyrighted work.

The four statutory factors of fair use are:

The purpose and character of the proposed use
The nature of the work being used
The amount of the work being used
The effect of the use upon the market for the copyrighted work

Several factual inquiries drive analysis of each of the four factors. The resources in this Toolkit can help libraries understand and conduct these inquiries. Several libraries have also created excellent guides to understanding and applying the four factors:

University of Minnesota Libraries - Understanding Fair Use
University of Pittsburgh - What is Fair Use
Columbia University Libraries - Fair Use
Boston College Libraries - Fair Use Factors
Harvard Library Office of Scholarly Communication - Fair Use Guide

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Fair Use

Fair use is a legal exemption to the exclusive rights of copyright holders. It is determined on a case-by-case basis and is based on a consideration of the following four factors:

The purpose and character of the use (including whether it is transformative, commercial, non-profit, or educational)
The nature of the copyrighted work
The amount and substantiality of the portion to be used
The effect upon the potential market for the copyrighted work

Because intention is a part of the consideration, only the user can make the initial assessment of whether their use is fair. Cornell University Library provides a guide and checklist to help you in your determination. We strongly recommend that you complete and retain this form for all Fair Use considerations you make.

Fair use rules do not state a concrete maximum of usable material (not a number of words, or a length of time, or a percent of total). Fair use also does not mean that Cornell users can use/distribute any copyright material they want simply because Cornell is an educational non-profit. We are bound by copyright law too!

There is a lot of subtlety in Fair Use interpretations, for more information see the Copyright Office’s Information on Fair Use, and Case Index.

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One important note...

The U.S. Copyright Office's factsheet on "Fair Use" notes that:

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 permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission [Emphasis added].

Adapted from "Copyright and Intellectual Property Toolkit" by University of Pittsburg Library System licensed under Creative Commons Attribution 4.0 Internatio nal License. Creative Commons - Attribution icon

Fair Use Examples

Images from the Association for Research Libraries.

Creative Commons - Attribution icon "Copyright and Intellectual Property Toolkit" by University of Pittsburg Library System licensed under Creative Commons Attribution 4.0 Internatio nal License.

What about photos of copyrighted items?

If you take a photograph of a copyrighted item, this can sometimes count as reproducing the item and is a violation of copyright. However, there are some cases when it is okay - read this document from the World Intellectual Property Organization to learn more.

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Learning More About Fair Use

Benson, Sara. “Fair Use Video - Youtube.” Fair use video. University of Illinois Library, August 19, 2019. https://www.youtube.com/watch?v=ZhsTpDSqBXM.

"Copyright Services" by Cornell University Library licensed under Creative Commons Attribution 4.0 International License.

Presentations on Fair Use

ACRL Presents: Digging for Gold with Bundles of Sticks: Copyright, Fair Use, and Text Data Mining (Webinar, 2019) Video on text data mining (TDM) copyright issues, including how copyright law fits in with TDM, the scope of fair use rights and what courts have said about it, and tips for building copyright literacy into TDM support and content licensing. Other law and policy literacies (contracts, privacy, ethics) shaping TDM research are also covered.
ACRL Presents: Can't You Just Say Yes: Answering Copyright Questions About Fair Use for Faculty Colleagues (Webinar, 2018) Video on how academic librarians can guide faculty through fair use determinations, empower them to become more confident in making fair use determinations on their own, and walk the fine line between sharing information and giving legal advice. Quality resources on fair use and US copyright law is also covered.
ACRL Presents: Using Fair Use to Preserve and Share Disappearing Government, A Guide for Rogue Librarians (Webinar, 2017) Video discussing fair use as an equitable doctrine that permits use of copyrighted materials for the public good. Viewers will understand the copyright issues surrounding government information and the effects of sharing materials posted on platforms (.gov sites, Twitter) as well as apply fair use in their own practices of preserving and sharing digital government documents.
ACRL Presents: Fair Use Factors: Their History and Application (Webinar 2016) Video on the history of fair use factors and subfactors (commerciality, publication status, transformativeness) and how to use the knowledge of this history to make fair use decisions.
Mitigating Risk at the Front Lines: Copyright First Responders Program (Webinar 2016) Video on the Copyright First Responders (CFR) program at Harvard University, including the types of questions answered by the program, lessons learned, and best practices.
ACRL Presents: Does Fair Use Really Work? (Webinar, 2015) Video discussing the role of context in making fair use decisions and providing strategies for deciding when to turn to fair use and how to think through the analysis.
Four Factors of Fair Use (Presentation 2014) Brief video on the four factors of fair use from the Standard Center for Internet & Society.
Common Myths about Copyright and Fair Use (Presentation 2014) Brief video on common myths about fair use from Stanford Center for Internet & Society.
The Key to Fair Use: Transformation (Presentation 2014) Brief video on the importance of transformative fair use from Stanford Center of Internet & Society.
Fair Use without Fear (Webinar, 2014) Video on the growth of the fair use doctrine and the ways that communities, including scholars, are taking advantage of their fair use rights to get things done. Co-sponsored by ASERL, Boston Library Consortium (BLC), Greater Western Library Alliance (GWLA), Triangle Research Libraries Network (TRLN), and Washington Research Library Consortium (WRLC).
Follow the Four Factors of Fair Use (Presentation 2014) Brief video on the four factors of fair use and how they apply from the Ohio State University Copyright Resource Center.
Copyright and Fair Use 101 (Webinar 2013) Webinar on the basic principles of copyright and fair use, the "four factors of fair use", and recent court cases dealing with these issues in academic libraries. Co-sponsored by ASERL (Association of South East Research Libraries), Boston Library Consortium (BLC), California Digital Library (CDL), CIC Center for Library Initiatives, Greater Western Library Alliance (GWLA), Triangle Research Libraries Network (TRLN), and Washington Research Library Consortium (WRLC).
Code of Best Practices in Fair Use for Academic and Research Libraries (Webinar 2012) Rollout video introducing the Code of Best Practices, discussing the methodology for creating the Code, and the application of the eight scenarios from ARL.

Creative Commons License "Scholarly Communication Toolkit: Fair Use" by ACRL licensed under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

Copyright and Intellectual Property

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Further Reading on Fair Use

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