Understanding Fair Use

Posted on May 16, 2022

By Rosie Liljenquist - Publishing and Open Access Librarian

This post is for informational purposes only and should not be construed as legal advice.

Copyright legally grants for a limited time the monopolistic use of a work. The copyright holder has the sole ability to make copies, distribute, edit, perform, and display. Rather than allowing all copyrighted works to sit in a vacuum where their uses are incredibly limited to everyone except the rights holder, certain exemptions are allowed. The most familiar to us in higher education is fair use.

Fair use allows for limited use of copyrighted materials. These uses include education, criticism, news-reporting, parody, commentary, etc. Fair use is widely considered a bit tricky because it is based on four factors rather than a specific legal code. The four factors are the nature of the work, your purpose of the work, the amount of the work you are using or if the heart is used (substantiality), and the market effect. Each of these four factors are weighed individually to determine if a copyright infringement could be considered fair use. These instances are decided on a case-by-case basis by a judge. You won’t ever actually know if your use was fair use unless you are taken to court.

In the instance of the first factor: purpose, there are certain uses that favor fair use. These uses include non-profit teaching, whereas uses that favor permission include for entertainment and for-profit. With nature, fair use favors previously published and facts and permission favors fiction and unpublished. Fair use favors a small amount or not significant to the work, and permission favors a large amount or the heart of the work. No major impact to the market, user owns a legal copy, limited access to the work, and unavailable licensing or permissions favor fair use. Major market impact, licensing and permissions available, global availability, and repeated use favor permission. The goal of fair use is to balance the rights of the copyright holder with the rights of the public. There are various sites that support analysis including Purdue’s: https://www.lib.purdue.edu/uco/fair-use. Again, these sites are to be used for information purposes only.

The fair use exemption applies to everything that has copyright or is licensed. Works that are original in a fixed format are eligible for copyright and do not require registration for copyright to apply. Works could include images, articles, music, compositions, performances, etc. Things that do not have copyright are facts and certain works by the federal government. For copyright to apply there must be some level of creativity.

If you have questions and would like to schedule a consultation, please contact Rosie Liljenquist, Swem’s Publishing and Open Access Librarian at rliljenquist@wm.edu.