The Fair Use provision, established in the Copyright Act of 1976, is designed to allow the limited use of copyrighted works for the purpose of criticism, comment, teaching, scholarship and research. It allows limited reproduction of copyrighted works for educational and research purposes without prior authorization of the copyright holder and without paying royalty fees.

Section 107 of the United States Copyright Act lists four factors used to determine when content usage may be considered “fair use.” For a finding of fair use, all four factors do not need to be affirmative, and no single factor trumps the other factors.

1. The purpose and character of the use, including whether the copied material will be for nonprofit, educational, or commercial use. Also considered here is the tranformative nature of the use.  For example, was the material used in a way significantly different than was originally intended (e.g. criticism or instruction), or was something created that was significantly different than the original material.

2. The nature of the copyrighted work, with special consideration given to the distinction between a factual work and a creative work. For example, photocopies made of a newspaper or news magazine column are more likely to be considered fair use than copies made of a musical score or a short story.

3. The amount, substantiality, or portion used in relation to the copyrighted work as a whole. This factor requires consideration of:

  • the proportion of the larger work that is copied and used
  • the significance of the copied portion

4. The effect of the use on the potential market of the copyrighted work. If the reproduction of a copyrighted work reduces the potential market and sales and therefore the potential profits of the copyright owner, then use is unlikely to be found a fair use. For example, a teacher who photocopies a workbook page or a textbook chapter is depriving the copyright owner of profits more directly than if copying one page from the daily paper. This factor has recently held more weight in determining fair use.

Please note that if a specific concern or question is not addressed in this guide, that does not alleviate you of the responsibility to comply with the U.S. Copyright Law.