To celebrate Fair Use Week (February 21-25, 2022) the IU East Campus Library is highlighting what fair use is and resources available that can help researchers determine if fair use applies to a given situation. 

What is Fair Use?

In US copyright law, fair use is the legal doctrine that allows brief excerpts of copyrighted material, under certain circumstances, to be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission or payment from the copyright holder. Fair use is vitally important to creativity, teaching and scholarship, and innovation. It is a fundamental right, and thanks to Justice Ruth Bader Ginsburg, it is considered by the Supreme Court to be a “first amendment safeguard” (Fair Use Fundamentals).

There are four main factors in determining fair use (U.S. Copyright Office):

1. The purpose and character of the use (Commercial, nonprofit, educational, etc.)
2. The nature of the copyrighted work (Novel, photograph, technical article, news, etc.)
3. The amount and portion used in relation to the copyrighted work as a whole (Number of minutes, length of text, etc.)
4. The effect of the use upon the potential market (Does the unlicensed use harm the copyright holder? Displace sales, etc.)

In the court of law, the assessment of fair use is usually dependent on the answers to two questions:

1. Is the use transformative—is the purpose for which preexisting copyrighted material is reused different from that for which it was originally created?
2. Is the amount of material used appropriate to the purpose of the new use?

If the answer is yes to the two questions above, then fair use most likely applies (Center for Media & Social Impact).

Resources and Activities

Fair use can fall into a legal gray area and there is no easy answer on whether something can be considered fair use or not. Each situation is unique and requires its own evaluation. Section 107 of the Copyright Act provides the statutory framework for determining whether something is fair use, but there are tools that can help researchers determine if their use falls under fair use.

The Fair Dealing Tool by Red River College PolyTechnic Library is a checklist of questions that will walk researchers through their planned use to help determine if they are acting in fair use or if they should seek permission. Cornell University Library also offers a comprehensive checklist in a PDF format.

Test your fair use knowledge with University of Colorado’s Fair Use Doctrine Quiz. The quiz offers six different scenarios, and each player must analyze whether the use described would be considered fair use or not.

Another helpful resource is American University’s Center for Media & Social Impact (CMSI) Codes of Best Practice for Fair Use. They have fair use statements for the use of images for teaching and research, statements for the use of collections containing orphan works, as well as best practices for using online videos, sound recordings, films, poetry, journalism, and more.

For faculty and other instructors, there are other protections for educational use of copyrighted material (i.e. the TEACH Act). To find out if your intended use meets these requirements, visit the Exceptions for Instructors in U.S. Copyright Law eTool. This will help you detail your educational use of a certain work and will provide you with an PDF summary. For questions about fair use or copyright, you can contact Assistant Librarian of Access and Technical Services Beth South eabrockm@iue.edu, Ask Us! iueref@iue.edu or click here