Fair Use

§107 of the Copyright Code allows fair use “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…” 

Fair use is what establishes educational and free expression purposes–beyond any codified exemptions–but is not a blanket exception to copyright laws. 

“Balance” by Quika Brockovich is licensed under CC BY-NC-SA 2.0

Balancing The 4 Factors

1. The purpose/character of your use – Such as commercial, non-profit, educational, etc.
2. The nature of the original work – Generally speaking, the more creative a work is, the less likely you can rely fair use.
3. The amount and substantiality of the portion you are using in relation to the work as a whole – Evaluate whether the amount used is appropriate in light of the character of the use (Factor 1); do not use more than you need to accomplish your pedagogical purpose.
   • Contrary to popular belief, there are no specific rules as to what percentage or how many pages can be safely used.
   • If a small portion is used, but it can be deemed to contain the “heart of the work”, it will be more heavily protected; this is not in the law, but rather something the courts have established precedence for.
4. Any potential market impact – Does your use (through display, copy, derivative, etc.) substitute for the purchase of the source work?

It is important to understand that fair use is descriptive, not prescriptive; there is some, or rather a lot, of objectivity and grey area.

LRCCD Regulation 8333 §8.4 states that “A district employee shall exercise caution in applying the ‘fair use’ amendments to the copyright law…”

• A good rule to abide by is that you should be able to articulate an argument for why your use falls under fair use, both to establish confidence in the use as well as to be prepared should you need to defend it (to a student, a department chair, the copyright holder, or a judge)
• e-reserves are generally covered by fair use, but Factor 3 can still come into play
• Relying on fair use generally only allows you to use the same material for one semester
  • This is dependent upon how strictly you are reading the law; there is no one semester rule in the legal code
  • The understanding is that this gives you ample time to seek permission from the copyright holder or to find alternate material
• Rights holders do not decide what makes fair use
  • You might have a situation where your use clearly falls under Fair Use, but perhaps you ask for permission to be polite. If the owner declines to give you permission–or finds your use and asks you to cease and desist–but you can make a strong Fair Use argument, then you can still move ahead with your planned use. The precedent in the courts is that it will not be held against you if you did ask for permission but got no answer or were told no
• A book being out of print does not equal a fair use argument

Learn More:

• Copyright and Fair Use  – An overview from Stanford
• The Fair Use Checklist from Loyola includes expanded sections to highlight some different uses that either favor or oppose a Fair Use justification
• The Fair Use Evaluator can help you decide if your use is, indeed, fair as well as providing supporting materials to help you make that argument
• The Center for Media and Social Impact has composed a Code of Best Practices In Fair Use For Online Video
• Digital Media Law Project – Fair Use – A legal guide

Transformative Fair Use allows for creations from Weird Al, South Park, etc.

Note that the word “transformative” does not appear in the Copyright Code. The application of Transformative Fair Use has evolved through numerous litigation cases and court decisions. It comes into consideration when evaluating the 1st factor of fair use (above). Derivative vs. Transformative, where is the line?

• The resulting product should have a new meaning/use/purpose
  • In the case of images, this can be as simple as using smaller/lower res photos such as a thumbnail image
  • A grouping of materials on a theme can be considered transformative
  • Parodies are considered criticism/commentary and create new meaning (and are protected by free speech)
• Transformative works can be created for commercial gain, but they shouldn’t compete in the same market, to the same audience
  • The new work cannot substitute for the original

3 key questions in considering transformative fair use:

• Will it help you make a new point?
• Will it help readers/viewers get that point?
• Have you used no more than is necessary?

Lastly, this resource concludes with some guidance on Finding Content and Asking for Permission.

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Disclaimer: The content of this page is presented for informational purposes only and is not intended to substitute for legal advice.