What is it called when you are allowed to use portions of copyrighted work without permission from the copyright owner?

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**FAIR USE**

Copyright Disclaimer under section 107 of the Copyright Act 1976, allowance is made for “fair use” for purposes such as criticism, comment, news reporting, teaching, scholarship, education and research.

Fair use is a use permitted by copyright statute that might otherwise be infringing. 

Non-profit, educational or personal use tips the balance in favor of fair use. 

FAIR USE DEFINITION:

(Source: http://en.wikipedia.org/wiki/Fair_use)

Fair use is a doctrine in the United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship.  It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.  The term “fair use” originated in the United States.  A similar principle, fair dealing, exists in some other common law jurisdictions.  Civil law jurisdictions have other limitations and exceptions to copyright. 

U.S. COPYRIGHT OFFICE- FAIR USE DEFINITION

(Source: http://www.copyright.gov/fls/fl102.html)

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords.  This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U.S. Code).  One of the more important limitations is the doctrine of “fair use”.  The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law. 

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.  Section 107 also sets out in four factors to be considered in determining whether or not a particular use is fair: 

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

2. The nature of the copyrighted work

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

FL-102, Revised September 2010

[T]he fair use of a copyrighted work . . . is not an infringement of copyright.

Fair use gives users the right to use copyrighted material without permission under certain circumstances. If a use is fair, the user need not notify or seek permission from the copyright holder.

Contents

• 1 Illustrative Purposes
• 2 Four Factors of Fair Use
  • 2.1 First Factor: Purpose and Character of the Use
    • 2.1.1 Less Likely to Be Fair
    • 2.1.2 More Likely to Be Fair
  • 2.2 Second Factor: Nature of the Copyrighted Work
    • 2.2.1 Less Likely to Be Fair
    • 2.2.2 More Likely to Be Fair
  • 2.3 Third Factor: Amount and Substantiality
    • 2.3.1 Less Likely to Be Fair
    • 2.3.2 Neutral
  • 2.4 Fourth Factor: Effect on the Market
    • 2.4.1 Less Likely to Be Fair
    • 2.4.2 More Likely to Be Fair
• 3 Examples
• 4 Fair Use in Seven Words
• 5 Fair Use Checklist
• 6 What if My Use isn’t a Fair Use?
• 7 Fair Use at Penn State
• 8 Other Fair Use Resources

Illustrative Purposes

Section 107 of the Copyright Act gives examples of purposes that are favored by fair use: “.” Use for one of these “illustrative purposes” is not automatically fair, and uses for other purposes can be fair. The statute lays out four factors to consider in deciding whether a particular use is fair.

Four Factors of Fair Use

Each of the four factors has subfactors that influence how the factor weighs in favor of or against fair use. On its own, no individual subfactor guarantees that a use is fair or is not fair. The subfactors must all be weighed together.

First Factor: Purpose and Character of the Use

The first factor is one of the most important of the four factors.

Less Likely to Be Fair

More Likely to Be Fair

Second Factor: Nature of the Copyrighted Work

The second factor typically is the least important of the four fair use factors.

Less Likely to Be Fair

More Likely to Be Fair

Third Factor: Amount and Substantiality

Less Likely to Be Fair

• Using the heart of the work: Using the “heart of the work” weighs against fair use. This doctrine also comes from the Harper & Row case mentioned above. The news magazine in that case used a very small but very important part of President Ford’s memoir. It was the part of the memoir where he discusses his decision to pardon President Nixon, one of the most important decisions of his presidency. Using that part of the book weighed strongly against fair use because it was such an important part of the book.

Neutral

Fourth Factor: Effect on the Market

The fourth factor is one of the most important of the four factors.

Less Likely to Be Fair

More Likely to Be Fair

Examples

• Art criticism that requires reproducing the art is often fair use. An example of art criticism that requires reproducing the art is Arthur Lubow, “A Portrait of America That Still Haunts, Decades Later,” The New York Times, June 12, 2020, sec. Arts.

Fair Use in Seven Words

Fair Use Checklist

We are considering retiring the Fair Use Checklist and recommending the list of factors and subfactors above instead. Please contact us at if your unit at Penn State still uses the checklist.

You can use the PSU Fair Use Analysis Checklist to help analyze whether a use of a copyrighted work could be a fair use. No single item or factor is determinative of fair use. Download the Fair Use Analysis Checklist PDF or the Fair Use Analysis Checklist Word Document.

What if My Use isn’t a Fair Use?

If a planned use isn’t a fair use and doesn’t fall within another exception, you have options:

• Review your analysis/checklist. How can you change your planned use to turn it into a fair use? Can you reduce the amount of material or replace the material with material that’s more likely to be a fair use?
• Use openly licensed (e.g., Creative Commons) or public domain material instead.
• Obtain permission from the copyright holder.

Fair Use at Penn State

Review the PSU IP Policy regarding Fair Use.

Other Fair Use Resources

• US Copyright Office Fair Use Index
• Codes of Best Practices in Fair Use
• Summaries of Fair Use Cases
• Fair Use for Teaching and Research from the University of California
• Measuring Fair Use: The Four Factors, from NOLO, hosted at Stanford