Understanding Copyright: Fair Use in Depth

Four-Factor Test

In the 1976 revision of the Copyright Act, Congress included a section to guide users and the Courts in determining what is a fair use of copyright protected materials.   It is important to note that the factors are intended to be guidelines to be interpreted not definitions to be applied. None of the factors are intended to be more important than the others but are intended to be applied as a whole.

Below is an analysis of the four factors with examples.

First Factor:  The PURPOSE and CHARACTER of the Use

This refers to the nature of the use.  Since copyright law encourages scholarship, research, education, and commentary, noncommercial uses supporting education and research would be favored.  However, a similar use that is commercial in nature would not be favored.

The concept of transformation is also an important issue.  Would the use somehow transform the original work into something different or more.

Examples might include:

• A professor uses an image of a single painting in a lecture on modern art would be fair but if the Marketing department at the same institution uses the same image on a recruiting brochure for the Art History department would not be fair.  Using it in a lecture would be considered criticism or educational while using it on a recruiting brochure would be a commercial use.
• A student uses a small portion of a song, along with portions of several other songs, in a video for a class project about war protests in the 1960's may be fair but if the same student decided to market the same video the use would not be fair.  In the first instance the use was both educational and transformative but in the second case the use was commercial.

Second Factor: NATURE of the copyrighted work

When determining the nature of the work consider if it is fiction or non-fiction.  Works that are non-fiction, scholarly, factual, or informational in nature tend to meet this factor more so than do works of fiction that are more creative in nature.  Also, works that are unpublished, such as letters or manuscripts, tend to not lend themselves to fair use.

Examples might include:

• You are teaching an online business management course and want to demonstrate how "hands-on" leaders operate.  You think the character of Tony Sporano from the HBO series The Sporanos is an excellent example and want to embed a clip of the perfect scene in your online course lecture.   This would not be fair use because the source material is fiction.  It may also violate the amount and substantiality in Factor 3.  A better option would be to embed a video that is licensed to use by your institution.  Another option would be to link to a video.
• You are researching a book and have discovered a cache of personal letters written by your subject in an archive.  A fair use case for using the contents of theses letters would probably be unlikely since the letters were never intended to be published by the author.

Third Factor:  AMOUNT of the copyrighted work

Take into consideration the amount of the original work to be used.  Is it a very small portion in relation to the entire work?  Additionally, consider substantiality of the portion used... is it the 'heart' of the work?

There are no formulas to gage the proper amount, it all depends upon the individual circumstance and the part of the work used.  Using one chapter out of a 10 chapter book may be acceptable from Book A but not from Book B, it depends on the importance of the chapter to the overall work.

Examples might include:

• You would like to use a poem by your favorite local poet.  It is the most well known poem in the collection and is published in a hand-bound, limited edition of book containing 6 other poems.  While your use is only 1 poem, it is both a large portion of the overall work and the most important work in the collection and would not be fair use.  It is also unlikely to pass factor 4, effect on the market.
• You would like to make copies of Why East Wind Chills, a poem by Dylan Thomas and discuss in your class.  The library has a copy of Dylan's collected works including over 100 of Dylan's poems.  This would be permissible because one poem out of over 100 is not using a substantial portion of the entire work.

Fourth Factor:  EFFECT of the use on the potential market for the work

Because one of the aims of the Copyright Law is to protect the copyright holder's economic benefits, fair use takes into account how the proposed use would effect the creator.  Would the use harm the copyright holder economically by reducing potential sales?

Example might include:

• You would like your students to use an expensive, yet very short text for your class.  You know that most of your students wouldn't be able to afford but is extremely important information,  it so you decide to copy it and post it in your class.  This would not be a fair use because it is causing economic harm to the copyright holder by limiting sales.  It would also violate the third factor, amount and substantiality.  
• You teaching a pastry techniques class and and want your students to design pastries using 20th century artists as inspiration.  You have designed an innovative  decoration inspired by the work of pop artist Roy Lichtenstein. This would be fair use because the cakes are not harming the market for the original works by Lichtenstein.

https://www.nolo.com/legal-encyclopedia/fair-use-the-four-factors.html

Instructions:  Check all conditions and only those conditions that apply to your intended use.