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Copyright

A guide to help CSU faculty, staff, and students answer questions about copyright. THE INFORMATION ON THIS GUIDE DOES NOT SERVE AS LEGAL ADVICE.

What is Fair Use?

For educators and students, copyright might seem too rigid. However, there is a part of U.S. Copyright Law that provides considerable flexibility for educational and other uses, such as parodies. It's called the Fair Use Doctrine and it's very important.

The tricky thing about fair use is that there are no hard and fast rules that creators can follow to be sure their use can be considered fair. The measure of determining if something is fair use is if it is determined to be so by a court of law, at which point people using the work may have a lot to lose.

However, there is some guidance that those who wish to use copyrighted work can follow to determine how likely it is that their use is fair. There are 4 factors that people can use to determine if their use of a work is likely to be considered fair use:

  1. purpose of the use
  2. nature of the copyrighted material
  3. amount and substantiality of portion used, and
  4. effect on the market for the original

Each factor must be considered in turn, and a determination of fair use must be considered in the context of all the factors. The fair use factors are not like a checklist - a determination that each one weighs in favor of fair use is not necessary to consider the use fair. However, a careful consideration of each factor (in writing) before the use is recommended (see the Fair Use Checklist to the left).

Considering the Four Factors

Fair Use Factor Considerations
Fair Use Factor Things to Consider
1. Purpose and character of the use
  • Non-profit educational use weighs in favor of fair use
  • Use of the work to make money generally (but not always) weighs against fair use
  • Transformative use of the work generally weighs strongly in favor of fair use (parodies and satire, for example)
2. Nature of the work
  • Use of creative works like plays, poems, and literature generally weigh against fair use
  • Use of factual works tends to weigh in favor of fair use
3. Amount & substantiality of portion used
  • The more of a work used, the less the use weighs in favor of fair use (especially if more is used than is needed).
  • However, even if a small portion is used, if it is considered the "heart of the work" it may also weigh against fair use
4. Effect on the market
  • A use that negatively effects the market for the work (or even a potential market that is not currently being taken advantage of) weighs against fair use
  • If a license to use the work is available for purchase (and is not purchased), the use may weigh against fair use

 

A Fair(y) Use Tale