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Fair use is a legal doctrine that promotes freedom of expression by
permitting the unlicensed use of copyright-protected works in
certain circumstances. Section 107 of the Copyright Act provides
the statutory framework for determining whether something is a fair
use and identifies certain types of uses—such as criticism,
comment, news reporting, teaching, scholarship, and research—as
examples of activities that may qualify as fair use. Section 107
calls for consideration of the following four factors in evaluating
a question of fair use:
Purpose and character of the use, including whether the use is of a
commercial nature or is for nonprofit educational purposes: Courts
look at how the party claiming fair use is using the copyrighted
work, and are more likely to find that nonprofit educational and
noncommercial uses are fair. This does not mean, however, that all
nonprofit education and noncommercial uses are fair and all
commercial uses are not fair; instead, courts will balance the
purpose and character of the use against the other factors below.
Additionally, “transformative” uses are more likely to be
considered fair. Transformative uses are those that add something
new, with a further purpose or different character, and do not
substitute for the original use of the work.
Nature of the copyrighted work: This factor analyzes the degree to
which the work that was used relates to copyright’s purpose of
encouraging creative expression. Thus, using a more creative or
imaginative work (such as a novel, movie, or song) is less likely
to support a claim of a fair use than using a factual work (such as
a technical article or news item). In addition, use of an
unpublished work is less likely to be considered fair.
Amount and substantiality of the portion used in relation to the
copyrighted work as a whole: Under this factor, courts look at both
the quantity and quality of the copyrighted material that was used.
If the use includes a large portion of the copyrighted work, fair
use is less likely to be found; if the use employs only a small
amount of copyrighted material, fair use is more likely. That said,
some courts have found use of an entire work to be fair under
certain circumstances. And in other contexts, using even a small
amount of a copyrighted work was determined not to be fair because
the selection was an important part—or the “heart”—of the work.
Effect of the use upon the potential market for or value of the
copyrighted work: Here, courts review whether, and to what extent,
the unlicensed use harms the existing or future market for the
copyright owner’s original work. In assessing this factor, courts
consider whether the use is hurting the current market for the
original work (for example, by displacing sales of the original)
and/or whether the use could cause substantial harm if it were to
become widespread.
In addition to the above, other factors may also be considered by a
court in weighing a fair use question, depending upon the
circumstances. Courts evaluate fair use claims on a case-by-case
basis, and the outcome of any given case depends on a fact-specific
inquiry. This means that there is no formula to ensure that a
predetermined percentage or amount of a work—or specific number of
words, lines, pages, copies—may be used without permission.
Please note that the Copyright Office is unable to provide specific
legal advice to individual members of the public about questions of
fair use. See 37 C.F.R. 201.2(a)(3).
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