Fair use limits an author’s exclusive rights and defines how society may make limited uses of a work without compensating the author.
- News reporting
Four Factors of Use
The four factors are meant to protect an author from overuse without compensation. They are to be considered as a whole with no one factor weighing more heavily than another. If someone wants to make use of a copyrighted work, he must consider the following factors to determine if his use is fair.
- Purpose and character of the use
Is it for commercial use or for nonprofit educational use? Educational use is more likely to be fair.
- Nature of the work
Is the original fiction or nonfiction? Nonfiction is more likely to be fair as it is not a creative work.
- Amount of the work being used
What percentage is being used and is it the “heart” of the work? It is this factor that drove the development of guidelines. Using an entire work is usually regarded as unfair; however, using just 3% of the work which includes the “heart,” could also be unfair. This factor has grown over time to consider the transformative nature of a new work. Courts have examined cases where entire works were used, but because they were transformed into something new demonstrating creativity and not simple copying, the use of the whole work was allowed. See Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)
- Effect upon the market
Is it replacing the original, supplementing it, or creating a new market for it?
Thinking Through Fair Use
This tool from the University of Minnesota is based upon the Fair Use Checklist below, but includes room for making notes about your analysis. Once the form is complete, you can email a copy to yourself for your records.
This two-page checklist was developed by Kenneth Crews, a well-known and respected copyright expert. Using the checklist and retaining it for work that an individual wishes to use either online or in the classroom, demonstrates that the individual is aware of copyright and has attempted to make a fair use analysis for his use. This helps to protect the individual from perceived copyright violations.
Keep in mind that a new analysis must be done for repeated uses of the same materials or new uses of it. Repeated use is generally not considered fair.