Fair Use

According to Section 107 of the federal Copyright Act, fair use of a copyrighted work, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Fair use balances the rights of the owners and creators of copyrighted works with the needs of those who use such works (e.g., teachers and students). If the use of a copyrighted work is fair, then a user need not obtain advance consent of the copyright holder. In addition, fair use is an affirmative defense for alleged copyright infringers. In such cases, defendants generally have the burden of proof to show that their use was fair.

Evaluating whether a use is fair requires the application and balance of four factors, articulated explicitly in the act and discussed in this entry:

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

Purpose of Use

When examining the purpose and character of use, courts look at whether it is commercial or noncommercial, and whether the use is public or private. Although the determination is not automatic, noncommercial uses tend to be viewed as fair, while commercial uses are typically seen as unfair. Further, private uses are more often deemed fair uses than public ones. Positive for educators, educational purposes generally lean toward a finding of fair use.

The express language of Section 107 makes the distinction between nonprofit and for-profit educational uses. In order to make the distinction, a plaintiff (copyright holder) must present evidence of present or future harm to the market for the copyrighted work. Consequently, the fact that students are the ultimate users of the copyrighted works does not automatically dictate a finding of fair use. One of the biggest controversies arises in cases of course packet copies of multiple works for students to purchase. Largely, the courts agree that commercial copying services must obtain the copyright holders’ permission before including copies of protected works in compiled course packets.

Nature of the Work

On the second fair use factor, the nature of the copyrighted work, courts generally look at whether a copyrighted work is published or unpublished and whether it is fiction or fantasy versus nonfiction or factual or scientific material. If the copyrighted work used is fantasy or fiction (generally considered high on creativity and originality), then a court will weigh the second factor against a finding of fair use.

The use of copyrighted informational works, on the other hand, leans toward a finding of fair use, but the determination is not so easy when courts must consider the always controversial line between ideas (not protected) and the expression of them (protected). In nonfiction writing, scientific writing, and even in history and biography, multiple authors may interpret the same sets of facts and will often engage similar treatment of them. This does not dictate that a later work is an infringement of all those that came before.

There are exceptions, however. If a copyrighted work is unpublished, courts will weigh this factor against a finding of fair use. According to the Supreme Court in Harper & Row Publishers, Inc. v. Nation Enterprises (1985), an author has the right of first publication. For example, if a teacher provides her students with an unpublished writing produced by that teacher, future publication rights still belong with the teacher.

Amount of Material and Market

In the determination for the third fair use factor, the more material taken from the copyrighted work, the more likely a court will be to determine that the use is unfair. However, the measure of the material taken is made both quantitatively and qualitatively. For example, the same number of words taken from a novel as from a short poem could certainly give way to different fair use determinations.

On the quantitative end of the principle, if the quantity used is high, the fourth fair use factor—effect on the market—may play a role and dictate a finding of unfair use. On the qualitative end of the principle, the key determinant is whether the “heart” of the original work was taken. Quoting only the facts from a copyrighted source may not amount to an unfair use, but when the part taken is the essence of the original work, or the portion with the most popular appeal, the use will likely be unfair.

For the final fair use factor, the effect of the allegedly infringing use on the market for the original work, the copyright holder must show, with reasonable probability, a causal connection between the infringement and loss of revenue, not only for the current market, but also for the future one. In response, the alleged infringer must show that the damage would have occurred even without this use. Important to the inquiry is the effect not only on the market for the original work, but also on the markets for derivative works.

With respect to academic activities, fair use will generally be recognized so long as the use does not adversely affect the copyright holder’s market. For example, the use of brief quotes and passages from earlier works in a biography of the author of those works is considered a fair use, because the use does not affect the market for the biography subject’s pre-existing writings. On the other hand, when suitable copies of works are available from the copyright holders for purchase or license, then wholesale copying will not be considered fair, as in cases involving the copying and archiving of research articles, sheet music, or textbooks and the recording and copying of audiovisual works when suitable copies are available for sale.

While fair use determinations are made on a caseby- case basis, there are few legal disputes over fair use in educational settings, as the purposes are most often educational and noncommercial, regardless of whether the copyrighted works used are hard copy or electronic. Teachers may make copies of materials for lesson preparation and for classroom use, usually without incident. Section 110(1) of the act permits the performance and display of a copyrighted work by teachers and students “in the course of face-to-face teaching activities.” Further, section 110(2) permits these same activities in online or distance education formats as long as they are under the direct supervision of a teacher, an integral part of the class session, directly related to the classroom content, and made available only to those officially enrolled in a class.

Patrick D. Pauken

See also Copyright; Digital Millennium Copyright Act; Intellectual Property

Further Readings

  • Daniel, P. T. K., & Pauken, P. D. (2005). Copyright laws in the age of technology: Changes in legislation and their applicability to the K–12 environment. In K. E. Lane, M. J. Connelly, J. F. Mead, M. A. Gooden, & S. Eckes (Eds.), The principal’s legal handbook (3rd ed., pp. 441–453). Dayton, OH: Education Law Association
  • Daniel, P. T. K., & Pauken, P. D. (2005). Intellectual property. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 347–393). Dayton, OH: Education Law Association

Legal Citations

  • Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991). 
  • Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). 
  • Copyright Act, 17 U.S.C. §§ 101 et seq. 
  • Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985). 
  • Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996). 
  • Sony Corporation of America v. Universal Studios, 464 U.S. 417 (1984).