FAIR USE NOTICE

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Fair use is the legal doctrine that promotes freedom  of expression by permitting the unlicensed use of copyright-protected  works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a  fair use and identifies certain types of uses—such as criticism,  comment, news reporting, teaching, scholarship, and research—as examples  of activities that may qualify as fair use. Section 107 calls for  consideration of the following four factors in evaluating a question of  fair use:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted  work, and are more likely to find that nonprofit educational and  noncommercial uses are fair. This does not mean, however, that all  nonprofit education and noncommercial uses are fair and all commercial  uses are not fair; instead, courts will balance the purpose and  character of the use against the other factors below. Additionally,  “transformative” uses are more likely to be considered fair.  Transformative uses are those that add something new, with a further  purpose or different character, and do not substitute for the original  use of the work.
2. Nature of the copyrighted work:  This factor  analyzes the degree to which the work that was used relates to  copyright’s purpose of encouraging creative expression. Thus, using a  more creative or imaginative work (such as a novel, movie, or song) is  less likely to support a claim of a fair use than using a factual work  (such as a technical article or news item). In addition, use of an  unpublished work is less likely to be considered fair.
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the  copyrighted material that was used. If the use includes a large portion  of the copyrighted work, fair use is less likely to be found; if the  use employs only a small amount of copyrighted material, fair use is  more likely. That said, some courts have found use of an entire work to  be fair under certain circumstances. And in other contexts, using even a  small amount of a copyrighted work was determined not to be fair  because the selection was an important part—or the “heart”—of the work.
4. Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use  harms the existing or future market for the copyright owner’s original  work. In assessing this factor, courts consider whether the use is  hurting the current market for the original work (for example, by  displacing sales of the original) and/or whether the use could cause  substantial harm if it were to become widespread.

In addition to the above, other factors may  also be considered by a court in weighing a fair use question, depending  upon the circumstances. Courts evaluate fair use claims on a  case-by-case basis, and the outcome of any given case depends on a  fact-specific inquiry. This means that there is no formula to ensure  that a predetermined percentage or amount of a work—or specific number  of words, lines, pages, copies—may be used without permission.