Thinking Beyond the Four Factors

Every year, libraries and other information professionals recognize Fair Use Week, a week dedicated to educating our communities about the power of Fair Use to help them make informed and responsible decisions about their use of copyrighted materials.

Fair Use week in white text on black background

For example, the University Library at the University of Illinois will be sponsoring a Fair Use Week Game Show, hosted by Copyright Librarian Sara Benson. This event will teach participants about how to conduct a Fair Use analysis in a fun and engaging manner in hopes of getting our campus excited about the possibilities that Fair Use opens.

When considering whether your use of a copyrighted work is a Fair Use, there are 4 main factors to consider: Purpose, Nature, Amount, and Effect.

Purpose refers to your intended use of a work and specifically considers whether you are using it for educational purposes, which is more likely to be considered a fair use, or for profit, which weighs against Fair Use. Nature refers to the work itself. Factual and published works are more likely to be considered a Fair Use than creative or unpublished works.

Amount considers how much of the work you intend to use. Using a small or less important portion of the work is more likely to be a Fair Use, while using the whole work or the “heart” of the work is less likely to be a Fair Use. Lastly, Effect looks at the potential market impact of your use of the work. If it is likely your use would impact the original creator’s ability to profit off their work, your use is less likely to be considered a Fair Use.

In order to make a Fair Use determination, courts weigh each of the four factors holistically to decide whether your use of a copyrighted work is allowed. However, could there be more to a fair use than the four factors used by the courts?

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“File:Johnny-automatic-scales-of-justice.svg” by johnny_automatic is marked with CC0 1.0

Using another person’s copyrighted material may not just be a legal question, but an ethical one. For example, many libraries make cultural artifacts taken from indigenous people available to the world. As these items get digitized, libraries are typically the copyright owners for the digital version. While doing your Fair Use analysis, it may be worthwhile to also consider whether the community these items were taken from would approve of your use of the material, even if a court would rule that your use is fair.

Another example is the use of personal photos, which the internet makes readily available online. While your use of these photos may be considered a Fair Use after weighing the four factors, is it ethical to include images of other people’s faces in your work without their permission?

Fair Use gives us guidance about how to avoid being sued for copyright infringement and arguments to defend ourselves if we do. But, Fair Use may not always be enough to tell you whether your use is ethical. When in doubt, you can ask your local librarian for tips and resources on using someone else’s copyrighted materials ethically and responsibly.

In the meantime, you can check out the Fair Use page on our Copyright Reference Guide, which contains several resources to help you think through your own Fair Use analysis. Happy Fair Use week!

Fair Use Week 2015: Celebrating the “Safety Valve” of U.S. Copyright Law

Here at the Scholarly Commons we care about copyright and related issues, and we do our best to ensure that students, faculty, and staff at the University of Illinois understand how copyright relates to their day-to-day work. Today marks the beginning of Fair Use Week (February 23-27, 2015), and we hope you’ll take advantage of our resources to understand this important exception to U.S. Copyright Law. A list of copyright-related guides from the library can be found at the end of this post.

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

Special thanks to Dan Tracy for this guest post.