Copyright and Fair Use

What is Fair Use?

Fair Use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works do not require permission from the copyright holder. (See Title 17, section 107)

Fair Use Basics

The Fair Use Doctrine is probably the most important exemption to copyright protections for educational settings, allowing many uses of copyrighted works for the purposes of teaching and research. The complexity of fair use and its importance in academia make it imperative that every member of CSULB understands how to make judgements concerning fair use.

Review these Common Scenarios to help you determine whether or not fair use is appropriate.

What is Fair Use?

Fair use is legal protection given to users that allows them to use copyrighted works in certain situations without asking for permission first. Fair use can be used for (but is not limited to) criticism, news reporting, parodies, teaching, scholarship, and research.

Examples of fair us in the classroom and research:

  1. Providing copies of articles for students to discuss
  2. Watching scenes from a popular movie to discuss gender roles
  3. Quoting other articles in your own research paper
  4. Text mining books to look for trends in word usage
  5. Taking pieces of various images, books, and other works to make a collage that represents a new artwork
  6. Including a small image of a picture an author is critiquing

Deciding Fair Use

Just because fair use can protect people in these types of uses doesn't mean that all such uses are protected, however. Instead, fair use must be applied on a case-by-case basis using what are called the four factors:

Factors In favor of fair use Against fair use
Purpose/character of the use
  • Not for profit
  • Educational
  • Scholarship/research
  • Criticism/parody
  • Transformational
  • For profit
Nature of the work
  • Fact-based
  • Published
  • Creative
  • Unpublished
Amount of work used
  • Just what is needed for your purpose
  • Using more than you need
  • Using the "heart of the work"
Market effect on work
  • Your use does not replace the market for the work
  • Your use could replace the market for the work

What do we mean by transformative?

Transformative has really grown as a concept in fair use in the past few decades. The more transformational a use of a copyrighted work is, the more likely courts have been to rule that it meets fair use, even if the other factors weigh against fair use.

No one clear definition of transformative exists, but generally, it's the idea that someone brings new meaning to a work or uses it in a different way than the original creator made it for. For instance, 2 Live Rap Crew's parody of Roy Orbison's song Pretty Woman was found by the U.S. Supreme Court to be transformative because it parodied the original song and therefore a fair use.

What is not transformative is using a work in way that it was originally meant for. This means that using a biology textbook to teach students about the basics of biology is likely not going to be considered transformative.

Tools to help you Determine Fair Use

Fair Use Evaluator: helps users collect, organize, and document the information they may need to support a fair use claim, and  provides a time-stamped PDF document for the users’ records. Developed by the American Library Association, Office for Information Technology Policy.

Fair Use Checklist:  From Columbia University, this widely regarded tool walks you through the necessary steps to determine if how you will use a resources falls within Fair Use.  It has been road tested as well!  In the recent "Georgia State" case, the court noted that the checklist was a good tool for faculty use.