JKM Library: Open Educational Resources: Fair Use

	: Fall 2024 Hours

Fair Use Resources

A Rundown on Fair Use
This site describes why the fair use exception exists, explores the four factors used to determine when a use is fair, and how to apply the four factors to your own use of copyrighted materials. (Stanford University Library's Copyright and Fair Use website)
Copyright and Primary Sources
Best practices for using copyrighted primary resources responsibly, and for determining when fair use is appropriate (Library of Congress)
Fair Use, Copyright, and Images: FAQ
An FAQ on fair use and copyright issues. (Office of Scholarly Publishing, MIT Libraries)
The Fair Use Evaluator
This online tool requires a creator to answer questions about their use of copyrighted material and consider whether it meets fair use guidelines. (Copyright Advisory Network, a division of the American Library Association Office for Information Technology Policy)
The Fair Use Checklist
Background on fair use and advice for applying it via the checklist. (Copyright Advisory Office of Columbia University Libraries)
U.S. Copyright Office Fair Use Index
This searchable index lists copyright cases argued in the U.S. Supreme Court, circuit courts of appeal, and district courts in which fair use has been used as a defense. (United States Copyright Office)

What is Fair Use?

Title 17, Section 107 of U.S. Copyright Law: Limitations on Exclusive Rights: Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
the nature of the copyrighted work
the amount and substantiality of the portion used in relation to the copyrighted work as a whole
the effect of the use upon the potential market for or value of the copyrighted work

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Fair Use in Practice

Beyond the four factors, there are no tangible guidelines for what constitutes a fair use. The courts have deliberately kept the law vague so that fair use cases can be decided on a case-by-case basis.

A fair use of copyrighted materials does not need to meet all four fair use factors. A successful fair use may meet only one factor, or some combination of the factors. For example, a teacher may decide to show an entire film in a classroom setting. This use fails on factor #3, substantiality, because it entails consuming the entire work, and not just a portion. However, the single classroom showing being unlikely to effect the market value of the film (#4) and the educational purpose of the use (#1) both reinforce the right to fair use.

Scholars, artists, and others who wish to use copyrighted material for their own purposes must consider all four factors. Online tools exist to help users make this evaluation. See Fair Use Resources on the left sidebar and the collection of Best Practices on the right sidebar.

Fair Use Quiz

Test your skills at evaluating whether a use of copyrighted material meets the criteria for fair use, with this educational quiz from the Office of Scholarly Publishing, Copyright and Licensing through MIT Libraries.

Fair Use Quiz by MIT Libraries, used under Creative Commons license CC BY-NC 4.0

Best Practices

The Center for Media & Social Impact has committed itself to ensuring that people in the United States understand their right to selectively use copyrighted material without licensing--a right called fair use, which is protected by the U.S. Copyright Code. Many people believe that fair use standards are too complicated for a layperson to understand, and thus fair use rights are often not exercised. Various groups have come together to create standards for applying to fair use in specific disciplines and to demystify the process.