Website and Software Permissions
D.
The "Fair Use" Exception to Copyrighted Works
Even if the material you want to use is protected by copyright, you will not need permission if your intended use constitutes a "fair use." Under the fair use rule, an author is permitted to make limited use of preexisting protected works without asking permission. All copyright owners are deemed to give their automatic consent to the fair use of their work by others. The fair use rule is an important exception to a copyright owner's exclusive rights.
The fair use rule is designed to aid the advancement of knowledge, which is the reason for having a copyright law in the first place. If scholars, educators, and others were required to obtain permission every time they quoted or otherwise used brief portions of other authors' works, the progress of knowledge would be greatly impeded.
Determining whether the fair use privilege applies in any given situation is not an exact
scientific process. Rather, it requires a delicate balancing of all the factors discussed below. Probably the best rule for fair use is the following variant of the Golden Rule: "Take not from others to such an extent and in such a manner that you would be resentful
if they so took from you" (McDonald, "Non-infringing Uses," 9 Bull. Copyright Society 466 (1962)).
The following four factors must be considered to determine whether an intended use of an item constitutes a fair use:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the effect of the use upon the potential market for or value of the copyrighted work; and
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole (17 U.S.C. § 107).
Not all these factors are equally important in every case, but all are considered by the
courts in deciding whether a use is "fair." You should consider them all in making
your own fair use analysis. For a more detailed discussion of fair use principles and the fair use factors, see Chapter 6.
 If you're not sure whether an intended use is a fair use, seek legal advice or get permission.
| Giving Credit Does Not Make a Use "Fair" |
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Some people have the mistaken idea that they can use any amount of material so long as they give the creator or copyright owner credit. This is simply not true. Providing credit will not in and of itself make a use "fair." Nevertheless, attribution should always be provided for any material obtained or copied from third parties. Passing yourself off as the creator of other people's work is a good way to get sued for copyright infringement, and is likely to make a judge or jury angry if you are sued. Quoting with attribution is a very good hedge against getting sued, or losing big if you are sued. Thus, you should always provide a credit line for any material you make fair use of.
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