What is Fair Use?

Important Terms

• Copyright law says that you have to get permission if you want to use someone’s song, video, photograph, article, etc.

• Fair use says that sometimes you don’t have to get permission to use someone’s creative work, even if it is copyrighted.

Image by Flickr user PugnoM, used by Creative Commons license

How Do We Know?

Four Factors of Fair Use:

1. purpose and character of use

2. nature of copyrighted work

3. amount of substantiality of work used

4. effect of use upon potential market

Image by Flickr user PugnoM, used by Creative Commons license

Factor #1:Purpose and Character of Use

• Has the original work been transformed with new expression or meaning?

• Was value added to the original work by creating new information, understandings, etc.?

Image by Flickr user dave_mcmt, used by Creative Commons license

Factor #1:Purpose and Character of Use

Examples:• education• review or criticism• parody

Factor #2:Nature of Copyrighted Work

• Does the work consist mostly of facts or information, or is it more creative?

• Is the work published or unpublished?

Image by Flickr user Muffet, used by Creative Commons license

Factor #3: Amount/Substantiality of

Portion Used• The less you use,

the more likely it is fair use.

• A guideline is 10%.

• Even small portions can be infringements if they are the “heart” of the work.

Image by Flickr user Maui in Vermont, used by Creative Commons license

Factor #4:Effect of Use on Potential

Market• Does your use

deprive the artist of income?

• Does it hurt the market or the future market for the original work?

Image by Flickr user TracyO, used by Creative Commons license

Main Points

• The first factor (purpose of use) is considered the most important.

• Judges consider all four factors when ruling in copyright cases.

• Judges have lots of leeway to interpret the factors when they make their ruling.

Image by Flickr user Joe Gratz, used by Creative Commons license