Fair use is an important aspect of the copyright law of the United States, and it allows you to make limited uses of copyrighted works without permission from the owner or other rightsholder. Whenever you include a copy of a portion of a copyrighted work without permission from the rightsholder, you will be expected to do a thoughtful fair use analysis, and affirm that you found the use you are requesting to be a fair use. However, not all such educational uses are within fair use.
A determination of whether your use is a fair use depends on whether the four factors in the statute weigh in favor of or against fair use. The four fair use factors are:
Factor 1: The purpose and character of the use.
Factor 2: The nature of the copyrighted work.
Factor 3: The amount and substantiality of the portion used.
Factor 4: The effect of the use on the potential market for or value of the original.
The four factors are weighed and balanced together to determine whether the use is within fair use or is an infringement. However, the four factors do not carry equal weight. Factor four carries the most weight but not so much weight that it is outcome determinative. Further, when the works are published, non-consumable and non-fictional works, factor two carries little weight.
Factor 1 considers both the nonprofit educational purpose of the use and whether the use is transformative (e.g., you adapted the work to a new purpose) or nontransformative (e.g., mirror-image copying). The court uniformly weighed this factor in favor of fair use, because all uses were strictly of a nonprofit educational character or for the sole purpose of teaching students in classes at a nonprofit educational institution, even though the uses were not transformative.
Factor 2 generally favors fair use for non-fiction and fact-based works. Many of the works we use in teaching fit that description. However, the court also ruled that this factor can weigh against fair use if the book or other work principally comprises evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information, or derives from the author’s experiences or opinions. Other conditions that tend to favor fair use with regard to this factor include whether the work is published (e.g., not a manuscript or personal letter), whether it is a non‑consumable work (e.g., not a workbook or exam form).
Factor 3 generally looks to the amount of the original work used. The court rejected any bright-line rule, such as exact counts of words, pages, or chapters. This factor can weigh in favor of fair use if the excerpts are decidedly small and generally fill a legitimate purpose in the course curriculum and are narrowly tailored to accomplish that purpose. The lengthier the excerpt, the more the use could potentially harm the market for the work. Generally, use of a single chapter or less of a work is more likely to be a fair use than a use of multiple chapters of that work. However, the outcome of Factor 3 will vary based on the effect of the favored nonprofit educational purpose of the use under Factor 1, plus the impact of the unfavored market substitution as recognized under Factor 4.
In evaluating current or potential market harm, Factor 4 considers the effect of the use on the entire market for the work, if the specific use were to become widespread. In this case, the court identified the entire market to include any market for sales of the full books and any market for licensing excerpts of the work for electronic reserves. The court reached different conclusions about different works, depending on whether the excerpts were available for sale or licensing. For example, where the court found no indication that a specific work was available for licensing for electronic reserves, Factor 4 tended to weigh in favor of fair use. In those instances where the excerpt licensing market value exceeded the value of the market for the work as a whole, Factor 4 tended not to favor fair use.
Flow chart to help you answer the "fair use" question.
This guide, developed by the Authors Alliance, is designed to empower nonfiction authors to exercise their right to incorporate source materials into their writings by helping them to make confident fair use decisions.
Source: Images, Videos, and Procedures: Copyright & Permissions, The Charlotte Edwards Maguire Library, The College of Medicine, Florida State University; https://med-fsu.libguides.com/images/permissions. This content was reused by permission on 9/7/23.