What is fair use?

The fair use doctrine recognizes that rigid application of copyright laws in certain cases would be unfair or may inappropriately stifle creativity or stop people from creating original works, which would harm the public. So, the doctrine allows people to use someone else’s copyrighted work without permission in certain circumstances. Common examples include: criticism, commentary, news reporting, teaching, scholarship, and research.

Fair use exists in certain countries, including the U.S. Other countries around the world use related laws, such as fair dealing, that allow the use of copyrighted works in certain instances.

Since there are no clear rules that tell you what falls within the fair use doctrine, you may want to consult an attorney if you have questions about whether you are within the boundaries of fair use.

Factors that help determine fair use

Though it’s often difficult to know if a particular use of copyrighted work is fair use, the law offers some factors you can consider:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
    • Does the use transform or change the original work by adding new meaning, context or expression? Using a fashion photograph to discuss the amount of photo editing used in the photograph is more likely to be fair use than if the photograph were used without comment. Parodies may be fair use if they imitate a work in a way that criticizes or comments on the original work.
    • Is the use commercial or purely personal? Commercial, or for-profit, uses are less likely to be considered fair use.
  2. The nature of the copyrighted work
    • The use of factual works like maps or databases is more likely to be fair use than the use of highly creative works like poems or science-fiction movies.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    • The use of small portions of a copyrighted work is more likely to be fair use than copying an entire work. But even if a small portion is taken, the use is less likely to be fair if the portion used is the most important piece — the “heart” of the work.
  4. The effect of the use upon the potential market for or value of the copyrighted work
    • Will the use replace the original work such that people stop buying or viewing the copyrighted work? If so, this is less likely to be fair use.

To learn more about fair use in the U.S., you can visit the U.S. Copyright Office Fair Use Index.

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