Copyright law gives certain exclusive rights to creators, including the right to reproduce, distribute, and make adaptations from their works. Unauthorized use of another's copyrighted work is copyright infringement.
"Fair use" is an important defense that sometimes applies to claims of copyright infringement. If your use is fair use, is not infringement.
In this article, we explain how fair use works, given you examples, and help you evaluate whether the doctrine applies to your own situation. Our focus here is written works, nut keep in mind that fair use applies to any type of copyrighted work, including musical works, audio-visual works, and even software.
The fair use privilege is perhaps the most significant limitation on a copyright owner's exclusive rights. If you write or publish, you need a basic understanding of what does and doesn't constitute fair use.
Writers, academics, and journalists frequently need to borrow the words of others. Sooner or later, almost all writers quote or closely paraphrase material that someone else has written. For example, imagine:
Assuming the material quoted in these examples is protected by copyright, must Andy, Phil, Regina, or Sylvia get permission from the author or other copyright owner to use it? You may be surprised to learn that the answer is "not necessarily."
Under fair use, another author may make limited use of the original author's work without asking permission. Section 107 of the Copyright Act of 1986 (17 U.S. Code § 107) states that fair use of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
Subject to some general limitations discussed later in this article, the following types of uses are usually deemed fair use:
Use isn't automatically fair just because it falls into one of the categories above. And uses that don't fall into those categories can be fair.
When there's a dispute, courts consider the following four issues in deciding whether a use is fair use:
Read more about how courts interpret and weigh the four factors to decide whether a use is fair use.
Here are four practical questions that will help to inform you about whether your use of another's work might qualify as fair use. Other factors can come into play (like whether the copyrighted material has been published), but these questions can tell you a lot.
The purpose and character of your intended use of the material involved (the "why" of the use) is the single most important factor in determining whether a use is fair under U.S. copyright law. But regardless of your purpose in using the work, you should ask yourself whether you are merely copying someone else's work verbatim or instead transforming it into something new.
Without consent, you ordinarily can't use another person's protected expression in a way that impairs (or even potentially impairs) the market for their work.
For example, say Nick, a golf pro, writes a book on how to play golf. He copies several brilliant paragraphs on how to putt from a book by Lee Trevino, one of the greatest putters in golf history. If Nick's book could compete with and possibly damage the market for Trevino's book, Nick's copying would likely not be fair use.
As a general rule, the more material you copy from the original, the less likely it is that your use will be considered a fair use.
How much is too much? There's no hard-and-fast answer to that question. It depends in part on how much you need to accomplish your purpose (such as criticism, commentary, news reporting, teaching, scholarship, or research). If you copied five paragraphs when three sentences would have sufficed, you probably took too much. On the other hand, copying entire works, under some circumstances, can qualify as fair use.
The more important the material is to the original work, the less likely your use of it will be considered fair.
In one famous case, The Nation magazine obtained a copy of Gerald Ford's memoir before its publication. The magazine's article about the memoir quoted only 300 words from Ford's 200,000-word manuscript.
The Supreme Court ruled that this was not a fair use. According to the Court, the material quoted (dealing with the Nixon pardon) was the "heart of the book ... the most interesting and moving parts of the entire manuscript." The Court found that prepublication disclosure of this material would cut into the value or sales of the book.
For more detailed information on fair use and copyrighted material, see Getting Permission: Using & Licensing Copyright-Protected Materials Online & Off.
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