§ 107 . Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

THE PURPOSE AND CHARACTER OF THE USE

The Fair Use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses. The following purposes favor Fair Use

• teaching
• research
• scholarship
• Transformative or productive use (changes the work for new utility, quotations in a paper, for instance, or segments of a work mixed in to your own multimedia instructional presentation).  Courts favor "transformative" Fair Use.

Opposing Fair Use - Purpose:

• commercial activity
• profiting from the use
• entertainment
• bad-faith behavior                         

THE NATURE OF THE COPYRIGHTED WORK (aka, "Can I show a movie in my class?")

Regarding Fair Use, the sciences are less complicated than the Arts.  Factual works (scholarly, technical, scientific) are generally favored for Fair Use over creative works such as plays, poems, fiction, photographs, motion pictures. That being said, Fair Use allows screening an entire movie in the classroom or instructional auditorium, correlated with instructional activity, but transmitting an entire film over a computer network has more restrictions due to the fact that it could potentially be seen by non-students or copied from a network (See the TEACH page).

Favoring Fair Use for the Nature of the work:

• published work
• factual or nonfiction based
• information essential to educational objectives

Opposing Fair Use for nature or:

• unpublished work
• highly creative work (art, music, novels, films, plays)
• fiction

Use of a work that is commercially available specifically for the educational market is generally disfavored and is unlikely to be considered a Fair Use--so ask your library to purchase it!  It comes with public performance rights.

THE AMOUNT OR SUBSTANTIALITY OF THE PORTION USED

Amount is on a sliding scale, generally the more you use, the less likely you are within Fair Use. Yes, this does seem in direct contradiction to statements found in Nature, but such is the reality of copyright and Fair Use.  The most common answer to Fair Use questions is, "it all depends"--even from lawyers and other experts.

Favoring Fair Use - Amount/Substantiality:

• small quantity
• portion used is not central or significant to entire work
• amount is appropriate for favored education purpose

Opposing Fair Use - Amount/Substantiality:

• large portion or whole work used
• portion used is central to or the "heart of the work" - selection of a portion for reserve reading, for example, does not automatically grant "heart of the work" standing on the selection assigned as there are other reasons why a specific portion is chosen--remember your good faith decision making!

Courts have ruled that even uses of small amounts may be excessive if they take the “heart of the work:”

• For example, a short clip from a motion picture may usually be acceptable, but not if it encompasses the most extraordinary or creative elements of the film (think: Rosebud).
• Similarly, it might be acceptable to quote a relatively small portion of a magazine article, but not if what you are quoting is the journalistic “scoop.”
• On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose.

Photographs and artwork often generate controversies, because a user usually needs the full image, or the full “amount,” and this may not be a fair use. On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.” Such a version of an image might adequately serve educational or research purposes.

THE EFFECT OF THE USE ON THE POTENTIAL MARKET FOR OR VALUE OF THE WORK

Can you easily purchase the copies that you need? Are you using an entire journal issue, a large portion of the book, most of the illustrations from an article or book?  The greater the amount used, the less likely it is to be considered Fair Use.

Favoring Fair Use - Effect:

• user owns lawfully purchased or acquired copy of original work
• one or few copies made
• no significant effect on the market or potential market for copyrighted work
• no similar product marketed by the copyright holder
• lack of licensing mechanism

Opposing Fair Use - Effect:

• could replace sale of copyrighted work
• significantly impairs market or potential market for copyrighted work or derivative
• reasonably available licensing mechanism for use of the copyrighted work
• affordable permission available for using work
• numerous copies made
• you made it accessible on the Web or in other public form
• repeated or long-term use is NOT part of copyright law, but a safe practice is to seek permission for repeated use, especially if it is over the course of several years, but it is not official copyright law.

Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works.

Effect is also closely linked to Purpose.

• If your purpose is research or scholarship, market effect may be difficult to prove.
• If your purpose is commercial, then adverse market effect may be easier to prove.