Copyright is given a specific purpose in the United States Constitution: “To promote the Progress of Science and useful Arts.” Fair use is one of a set of exceptions built into U.S. copyright law meant to ensure that copyright does not become so restrictive as to prevent you from using protected works in ways central to this purpose. (Some other countries have a similar concept called “fair dealing.”) It’s what might allow an artist to create some parodies of other works, enable a scholar to include reasonable portions of another work in an article or book if for an appropriate purpose, or a search engine to produce thumbnail images of photographs from search results.
Words above like “might,” “some,” “reasonable,” and “appropriate” suggest why some people hesitate to make fair use decisions, even when there may be a clear fair use case protecting their actions. Fair use is governed by four factors: the purpose of the use, the nature of the work being used, the amount and substance of the work being used, and the effect on the market for the original work or its value. These factors have to be considered together, on a case-by-case basis. While previous case law can provide guidance, there are no hard rules about what you can or cannot do. For example, some people think all educational uses are fair use. While educational purposes do help under the “purpose” criteria, they are not decisive. On the other hand, some people worry that any negative impact on the market or value of the work rules out fair use. This would probably hurt your fair use case, but it again wouldn’t be decisive. Some of the most well-known fair use cases are well-documented, and they reveal how the final decision for or against fair use can be shaped by specific situations.
Luckily many everyday fair use decisions are pretty straightforward. A student or scholar may have to work out the details on how to appropriately cite another essay for intellectual integrity purposes, but except in extreme cases they don’t worry about needing permission from the copyright holder to quote in the first place. A good thing to do if you are worried whether a use may or may not be fair use is to fill out a “Fair Use Checklist” and then consider whether the overall balance of factors favor your situation. Some scholarly and professional organizations have also released guides to best practices on fair use that you may find helpful: a new example is the College Art Association’s “Code of Best Practices in Fair Use for the Visual Arts.” You can also contact us at the Scholarly Commons with copyright-related questions of all types if you need further assistance. We can’t give you legal advice, but we can point to appropriate resources and ask questions that may help you work out a decision for yourself, whatever that may be.
This week, you can also learn more about fair use from many sources online. Search for the #fairuseweek2015 hashtag on social media sites, or follow @fairuseweek on Twitter. On Tumblr, Fair Use Week 2015 is highlighting fair use success stories to inspire us all. We’ll also be participating through the Scholarly Commons Twitter feed: follow us for fair use related tweets in addition to updates on our wide array of resources to assist your teaching and scholarship.
Copyright Resources from the Scholarly Commons and Other Library Units
- Intellectual Property Guide focused on copyright-related issues including Fair Use and Exceptions.
- Finding and Using Images Guide: Copyright
- Practical Copyright Workshop Guide
- Copyright Resources for Music
Special thanks to Dan Tracy for this guest post.