Fair Use is defined in Section 107 of the Copyright Act and allows limited free use and distribution of copyrighted materials under certain conditions. The full extent of Fair Use is not defined in the statute; the concept continues to evolve with each court case. The purpose of Fair Use is to enable educators, researchers, and commentators to use copyrighted works in pursuit of their jobs – research, teaching, criticism, and news reporting all fall under Fair Use. In court cases, judges consider four factors: purpose of the use, nature of the work, the proportion of the work used, and the effect of the use on the market.
In recent years, judges have increasingly focused on the question of whether the use of a copyrighted work is "transformative" – was the work used in a new way or for a different purpose than the creator intended to create something new, and was the amount of the work used appropriate to achieve the desired result?
In determining whether your use of copyrighted material falls under Fair Use doctrine, you must consider all four of the factors defined by the courts. Even if your use does not meet all four of the guidelines, your use of copyrighted materials may still be protected.
- Purpose and character of use: Fair use generally covers educational, research, critical, and news reporting uses of material for non-profit uses. For-profit uses of copyright material are less likely to fall under Fair Use guidelines. Using the material in a new way that does not replicate the creator's intent is favored under fair use provisions.
- The nature of the work: Use of non-fiction works is more likely to fall under Fair Use than use of creative works like novels, poetry, or movies. Published materials are more likely to fall under Fair Use than unpublished works because the intent of the author to allow the use of unpublished works is less clear.
- The proportion of the work used: The smaller the proportion of the overall work used, the more likely the use is fair. Parts of poems, single chapters in books, clips of films, etc., may be fair uses of those works. You should use the smallest portion of the work that meets your educational or research purposes. Using all of a work, or the main portion of the work, is less likely to be fair use.
- Effect on the Market: If your use of portions of the work has a dramatic effect on the ability of the creator to sell the work (such as recreating textbooks or anthologies), it is less likely to be a fair use. When your use of the material is transformative, it is less likely to damage the creator's ability to market the work.
Judges have recently focused on the issue of whether uses are transformative in determining fair use, focusing on two key concepts: does the use create a new understanding of the copyrighted material by substantially changing it, or did the use duplicate the author's intent; and was the amount of the work used appropriate considering the nature of the original work. Fair Use privileges new uses (scholarly or creative) or small proportions of copyrighted works.