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Winthrop University

Copyright and Fair Use: Fair Use

Use this Quick Fair Use Checklist!

Interested in protecting and sharing your work? Try Creative Commons Licenses!

Determining Fair Use

George Mason University’s Copyright Office defines “fair use” as “what you are allowed by law to photocopy -- at the moment of inspiration, when there's not enough time to seek permission -- commonly referred to as ‘spontaneous fair use.'"

To determine if the material is being used fairly, four questions must be considered. Remember: determination of fair use is the collective answer to all four questions, not just the answers to the individual questions. 

1. What is the purpose and character of the use?

The purpose and character of the use is usually defined as being either commercial (for profit) or non-profit; educational use can fall into either category, so “educational use” alone is not enough to satisfy the fair use test. If the material is being used in a “transformative” way—that is, not as a verbatim copy but in a reworking or adaptation, the transformation may help determine fair use, but legally it alone cannot determine it.

2. What is the nature of the work to be used?

The nature of the work also contributes to a fair use determination. If the copyrighted material is factual (technical, scholarly, scientific) rather than interpretative (e.g. literary or artistic), it may pass this test more easily since there are fewer alternate ways to express factual materials.

3. How much of the work will you use?

The amount of the work used in relation to the whole work also must be factored in. Generally, the larger amount of the original work you use, the less likely it is to be fair use; however, the courts have also held that use of even a small amount of the work, called “the heart of the work,” may violate fair use in certain circumstances.

4. What effect would this use have on the market for the original or for permissions if the use were widespread?

The effect on the market for the original use must also be determined. If your use would negatively affect the market for the original, it is not likely to be considered “fair use”  (For instance, distributing one chapter per week of a required textbook so students don't have to buy the entire book would likely not be fair use because you are undermining the market for the book).

Popular Question!

Are there generally agreed-upon fair uses for education?

It is generally considered fair use to make a single copy of a journal article from an issue or a chapter or other small portion from an entire work such as a book for personal teaching or research uses.

Section 108 of the copyright act shares: a library may make copies of materials for its patrons under fair use under the conditions set forth in Section 108 of the copyright act . It further stipulates that qualifying libraries will not be liable for unsupervised use of reproducing equipment used on the premises if the reproducing equipment displays a notice that making copies is subject to the copyright law.

Section 110(1) of the copyright act allows educators and students to perform or display works in the course of face-to-face teaching activities at a nonprofit educational institution, in a classroom or similar place devoted to instruction. There is no limitation on the types or amounts of a work that can be performed or displayed except that an audiovisual work that is not lawfully made cannot be shown. This section authorizes, for example, displaying a picture, drawing, or photograph; showing an entire movie; acting out or performing a play or opera; and performing musical compositions as well as sound recordings in the classroom.