Fair Use Of Copyrighted Works

The "fair use" of a copyrighted work is an exception to infringement. Merely acknowledging the source of a copyrighted work when reproducing it does not result in the use being a fair use. United States Copyright Law provides some factors to consider in determining whether a use is a "fair use". Ultimately, however, a specific situation can only be considered a "fair use" when a court issues a decision based on the facts of that situation.

Fair Use Factors

a. The Purpose and Character of the Use
A commercial use is less likely to constitute "fair use" than an educational, non-profit use. The Copyright Law lists some specific purposes for which fair use may be applicable, namely, criticism, comment, news reporting, teaching (including reproducing multiple copies for classroom use), scholarship or research.

b. Nature of the Work
If a work is published, is factual or nonfiction based, or supports important educational objectives, the fair use exception is more likely to apply. If a work is unpublished, highly creative (e.g., art, music, novels, films, plays), and fictional, the fair use exception is less likely to apply.

c. Amount and Substantiality of Portion Used
The fair use exception is more likely to apply when a small portion of the work is taken. In contrast, taking the most important portion of the work reduces the likelihood of the fair use exception applying.

d. Effect On Potential Market or Value of the Work
If the copying will replace the need to purchase the original, the fair use exception is less likely to apply.