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Copyright Tips

A self-service guide to analyzing copyright questions

Fair Use

Fair use is an exemption to the rights of copyright holders. Without it, we would not be able to comment, critique, or educate with copyrighted materials.

The fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.

In determining whether the use is a fair use, four factors need to be considered:

  1. The purpose and character of your use of the copyrighted material
    1. Commercial vs. non-profit, criticism, news reporting, etc.
       
  2. The nature of the copyrighted work
    1. Fiction vs. nonfiction, published vs. unpublished, highly creative, etc.
       
  3. The amount and substantiality of the portion used in relation to the copyrighted work as whole
    1. Small amount, entire work, image resolution, the “heart” of the work can all be considered
       
  4. The effect of the use on the potential market value of the copyrighted work
    1. No effect, avoiding a purchase of the original work, owned, permission available

From the U.S. Copyright Office, Copyright Law of the United States, Chapter One, Section 107, “Limitations on Exclusive Rights: Fair Use

The four factors are not a strict list of rules. 
The factors are vague on purpose and they are interpreted on a case by case basis. One or two factors can also weigh more heavily than others, depending on the context. 

These four factors work in balance with each other. For example, a person may be using copyrighted material for a commercial use (rather than a non-profit or educational purpose) but is utilizing a published copyrighted work, in a small amount, and their use will have no effect on the copyright holder's market value. This use could be considered a fair use. 

Similarly, a non-profit educational organization could screen parts of a copyrighted film to a small group of students but charge a ticket price. This use would likely not be considered a fair use, even though the organization is a non-profit educational institution and they are not showing the whole film.   

an illustration of a scale

Fair Use FAQs

Is Fair Use a law?

Yes, Fair Use is codified in Title 17, Section 107 of the U.S. Code.

Is Fair Use only for educators?

No, fair use applies to everyone, nonprofit and commercial users alike. There are, however, certain privileges for educational uses.

Is all educational use "fair use?"

No.

What are some examples of ways copyrighted works can be used under the  fair use exemption?

You can use small portions of a copyrighted work to comment and illustrate a point, report news, do research or scholarship, criticism or parody.

How much of a work can I use safely?

There are no amounts or percentages in the law. If you have heard of percentages, those most likely come from guidelines developed over the years by groups like CONFU, but these percentages are not written into the law. When using copyrighted work, use the least amount necessary. Although the law does not specify any amounts, copyright scholars seem comfortable with approximately 10% of a work. If however you have chosen the "heart of the work," a much smaller amount might fail the fair use test. The "heart of the work" of a book might be the pages with the key turning point of a story or the revealing motivation for a person's action. For a song, it might be the 4 second refrain that is recognized worldwide, across generations.

You may have more leeway with amount when you are creating a parody.

What is transformative use?

Think of this along with your first fair use factor. The nature of the use may be commercial or nonprofit, and nonprofit uses are always considered more favorably. But your use may be more than that.  If what you do with the copyrighted work adds new meaning, brings new value, or repurposes a work, you have transformed it beyond its original use. The problem with transformative work is that you may think a use is transformative, but the judge may not. It is not always predictable. 

Stanford University has some examples to illustrate successful and unsuccessful transformative work.

How do I apply Fair Use in the classroom or in my distance education class?

For class handouts in a face to face classroom, see the tab marked "Classroom Guidelines."

For the use of performance and display in classrooms using digital transmissions (Brightspace, Moodle, etc), see thef TEACH Act.

What's new with Fair Use?
Professional communities of practice are beginning to issue best practices for interpreting Fair Use. Some of these are:

 Our thanks to the librarians at the University of Missouri--Kansas City for allowing UMA to reuse this text!

Accessibility Statement
The University provides reasonable accommodations to individuals with disabilities upon request. Any person with a disability who needs accommodations for a workshop should contact UMA Libraries at uma.library@maine.edu to submit a request. Due to the lead-time needed to arrange certain accommodations, individuals should submit their request no later 1 week before the event.