Copyright law can be difficult and confusing. This webpage is meant to provide you with information, not legal advice.
The library can help to clarify copyright related information; however, we are not copyright experts and in many cases we may send you additional information found from outside sources. The library cannot and will not make a fair use determination for you. As the instructor looking to use a copyrighted work for teaching or educational purposes, it is your responsibility to make sure you are using fair use appropriately.
If you need legal advice, please consult a lawyer.
U.S. copyright law provides an exception called "fair use," meaning that the reproduction of copyrighted works for specific, limited, educational purposes, does not constitute copyright infringement. But what does this mean? This means that you may be able to use copyrighted works for teaching and educational purposes as long as you make a fair use determination first.
The Copyright Act establishes a four factor test, or the "fair use test" as it is commonly referred to, used to determine whether the use of a copyrighted work is fair use that does not require the permission of the copyright holder.
Just because you are using something for educational purposes does not mean you get an automatic free pass under fair use. You must first evaluate whether or not your intended use meets the four factors under Section 107 of U.S. Copyright Law. You, as the instructor, are responsible for making this determination and accepting the risk of a fair use claim.
The four fair use factors you must evaluate before using a copyrighted work are:
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
(Section 107, U.S. Copyright Act)
Factor 1: Character of Use
| More favorable to fair use | Middle | Less favorable to fair use |
|---|---|---|
| criticism | non-profit | commercial |
| commentary | educational | |
| news reporting | personal | |
| parody | ||
| repurposing a work, providing new context, or otherwise adding value |
Uses on the left are examples of transformative purposes that tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle support a determination of fair use, even if there is no transformative purpose.
Factor 2: Nature of Work
| More favorable to fair use | Middle | Less favorable to fair use |
|---|---|---|
| factual works | mixture of fact & creative | imaginative or highly creative works |
| published works | unpublished |
Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission.
Factor 3: Quantity of Work
| More favorable to fair use | Less favorable to fair use |
|---|---|
| small quantity | more than a small amount |
| an appropriate amount for transformative purposes |
The general rule holds true (uses on the left tip the balance in favor of fair use; uses on the right tip the balance in favor of asking for permission), but if you conclude under the first factor that your purpose is transformative, you can use an amount of the work that is appropriate to accomplish that purpose.
Factor 4: Effect on Market
| More favorable to fair use | Middle | Less favorable to fair use |
|---|---|---|
| proposed use is transformative and not merely duplicative and amount used is appropriate for transformative purpose | password protection and/or technological protection | use is not transformative |
| proposed use is not transformative, but amount is small | competes with (takes sales away from) the original | |
| original is out of print or otherwise unavailable | Avoids payment for permission (royalties) in an established market for licenses | |
| copyright owner is unidentifiable | ||
| no available license |
The first three factors affect the analysis of this factor. In most cases, three things come together here: whether your use is transformative; whether the amount you used is appropriate for the transformative purpose; and whether there is an efficient and effective market offering a license to use the work in the way you want to use it.
As always, uses on the left weigh in favor of fair use; those on the right weigh in favor of getting permission.
The tables in this section were copied and/or modified from The University of Texas Libraries Fair Use LibGuide created by Colleen Lyon.
It is a good idea to document your fair use determination and keep it on file. Remember to make case specific determinations. For instance, instead of completing one fair use checklist for the use of 4 articles and 1 video, complete 5 separate checklist for each work you intend to use. If you determine that the use is not fair, seek permission.
The below video provides an example of a researcher making a fair use determination.