Copyright & Fair Use: Fair Use

Fair use, U. S. Code, Title 17, Section 107, limits the exclusive rights of a copyright owner and provides for limited use of copyrighted materials. 

Fair use is judged using the following four factors: 

1. Purpose and character of the use: is it educational, noncommercial, transformative? Likely to be considered fair use.
2. Nature of the copyrighted work: is it a more creative or imaginative work (e.g., novel, movie, song) is (less likely to support a claim of a fair use) than using a factual work (such as a technical article or news item). 
3. Amount and substantiality of the portion used: what amount of the copyrighted material is being used? Small=fair use; however, using even a small amount of a copyrighted work may not be fair because the selection is an important part - or the “heart” - of the work.
4. Effect of the use upon the potential market for or value of the work: courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.