Fair Use of Copyrighted Materials
Introduction to Copyright
Copyright refers to a legal device that provides the creator of a work of art, literature, or any type of original work that conveys information and ideas, the right to control how the work is used. Copyright ensures the author of four basic protections: the right to make and distribute copies of the work, the right to sell copies of the work, the right to prepare new works based on the protected work, and the right to perform the protecting work (i.e., staging a play or showing pieces of art in a gallery). Any expression that is original, tangible, and officially recorded may be copyrighted. According to the United States Copyright Office, the ability to copyright a work depends upon the work’s “fixation,” “originality,” and “creativity.” Public ideas and facts, words and names, and government works, such as judicial opinions, public ordinances, and administrative rulings cannot be copyrighted.
Defining Fair Use
Fair use refers to the most significant limitation on a copyright holder’s exclusive rights. The doctrine of fair use has developed considerably over the years, in response to a variety of substantial court rulings. Deciding whether the use of a work is deemed fair is problematic, as there are no black and white or set guidelines universally accepted. Typically, the individual who wants to use a copyrighted material must evaluate four factors relating to the purpose and character of the use and the nature of the copyright itself.
Evaluating Fair Use
If the new work is merely a copy of the original work, then this use is not deemed fair. Generally speaking, if an individual is using 50 percent of the work, or an even more significant portion, this is will not fall under the guidelines of fair use. However, if the new work alters significantly the original work, or transforms and transcends it in some way, this use is considered fair, especially if the new work is specifically intended for a different audience or is used for an entirely different purpose altogether. In evaluating the Fair Use Doctrine, recent court rulings have relied upon “transformative use”—the level or extent to which the individual changes or transforms the work in question—in order to help inform their opinion. If the use of the copyrighted work is for nonprofit, noncommercial, or educational purposes, than the use is more likely to be considered fair.
In addition to the purpose and character of the use, the nature of the copyright itself must be considered. For example, unpublished works are less likely to be considered fair. If the copyrighted work is out of print, it is more likely to be deemed fair use. One must also determine whether or not the copyrighted work is factual or artistic in nature. The more a work reflects artistic originality, the less likely the use of it will be considered fair, as copyright protects the particular way authors express themselves. The law does not extend to any ideas, systems, or factual information conveyed in a work. Permission to use copyrighted materials is always required when an individual tends to use the materials for commercial purposes, when the materials will be used repeatedly, and when the substantially large portions of the work or the work in its entirety will be used.
Copyright and Fair Use: Stanford University-A comprehensive and detailed guide covering all aspect of copyright law and the fair use doctrine.
Copyright Advisory Office: Columbia University-This resource offers an introduction to the copyright law, provides helpful checklists on the fair use doctrine, and gives information on specific topics such as fair use in education, research, libraries, websites, and more.
Fair Use Checklist-A useful PDF in determining whether or not an individual is within fair use guidelines.
United States Copyright Office- The United States Copyright Office promotes creativity and seeks to protect writers and artists by administering and sustaining an effective copyright system. Find out specific information on copyright law and the fair use doctrine.
Fair Use in Education and Research- Fair use offers an important opportunity for educators, researchers, and others to make reasonable and limited uses of copyrighted materials. This resource describes in detail how to determine fair use for educators and other professionals in this field.
Educational Guidelines on Fair Use-This resource provides specific information for educators on using copyrighted materials.
Reproduction of Copyrighted Works by Educators and Librarians- The documentary materials collected in this PDF report published by the United States Copyright Office covers copyright law and the fair use doctrine as both pertain to the the reproduction of copyrighted works by educators, librarians, and archivists.
Website Permissions- This section covers copyrighted law and fair use as both pertain to the use of websites as well as unauthorized transfers of information to and from websites and website linking.
Columbian University Library and Information Services: Special Topics- This resource offers specific information on distance education, the public domain, art and other images, online images, Google settlement, and international copyright laws.