Fair use is a common justification for copying copyrighted works. It has a long history in U.S. common law, and was included as part of the Copyright Act of 1976.

There are four factors involved in fair use, each defining a continuum which favors the public’s right to information at one extreme and the copyright holder’s intellectual-property rights at the other. When these four factors are weighed against one another, they indicate whether or not a work can be used without copyright holder permission.

Factor #1: What is the purpose of the use?
In other words, are you using the work for commercial or non-profit purposes? Non-profit purposes tip the scale toward use; whereas commercial purposes tip the scale against use. For example, showing a documentary to students in your class would weigh in favor of use; while showing it to the general public and charging admission would weigh against use.

Factor #2: What is the nature of the work?Is the work fact-based or fictional? Fair use favors the use of fact-based work over the use of fiction. For example, distributing a chapter from a textbook would weigh in favor of use; whereas distributing excerpts from a novel would weigh against use.

Factor #3: How much of the work will be used?
Fair use favors small portions. The less of a work you use, the more this factor weighs toward use. For example, showing 10 minutes of a two-hour movie would weigh more heavily in favor of use than showing the entire movie.

Factor #4: What is the effect upon the market or potential market?
Simply put, this asks, “If the use was widespread, would it prevent the copyright holder from legitimately making money from the work?” For example, copying and distributing a magazine article for one-time-use would weigh toward use, while copying and distributing a play for study over the course of the semester would weigh against use.

While applying the fair use test can get complicated, you can always contact us for help or use the Copyright Metro to determine your specific rights as an educator.