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What is Fair Use?

Fair use is a set of broad criteria identified in Section 107 of the Copyright Act of 1976 that allows individuals to use limited portions of a work in the name of criticism, teaching, scholarly research, and news reporting without first having to obtain permission from the work’s copyright holder. Consideration of all four of the factors below is required before proceeding with use, though all factors do not have to be in favor of use to make it a fair use. 

  • What is the purpose of the use?

    If the purpose of the use is non-profit and/or educational in nature, the use is more likely to be protected under the doctrine of fair use than if the intention is to use the material in a for-profit manner. Be aware educational use alone may not be sufficient to constitute fair use.

    There is also allowance made for a transformative use of material. Fair use permits the transforming of an original work to give it new expression or meaning. One common example of this is using original content in a parody.

  • What is the nature of the copyrighted work?

    The concept of fair use favors works considered factual in nature (i.e. created for the purpose of criticism, commentary, teaching, or scholarship) over works that are original fictional or artistic expressions. Also, since copyright law grants an author the right to first publication, greater accommodation is given when using published versus unpublished works.

    Copying material intended to be purchased (e.g. chapters from a textbook or an instructional module) is not protected under the idea of fair use.

  • What is the amount or substantiality of the item used?

    While the law does not define a set amount or percentage of a work that can be used and still be considered fair use, the smaller the amount of a work you use the more protected you are. 

    Regarding substantiality, even using a very limited portion of a work may not be allowed if that portion is what is referred to as the ‘heart of a work.’ In a fictional work, this might be a key or climactic plot scene; in a non-fictional work it may be a few pages that summarize the argument of the entire text, for example.

  • What effect will the use have on the potential market for the work?

    Copyright law grants an author the right to realize financial gain from the creation and sale of his work. If usage of the material negatively impacts the author’s ability to realize revenue it will not be considered fair use.