Copyright Law: "Fair Use" Exemption
By Peter Connor
The Four-Factor Determination Test
Using copyright-protected materials without seeking the copyright holder permission otherwise required under U.S. copyright law—Title 17 of the United States Code (§ 107, 1976) is allowed so long as it is "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."
On its face, the exemption is simple enough. The intent is to balance the rights of individual copyright holders with the public good, in other words, to be fair. And therein lies the proverbial rub, and all the reason for due diligence in making a good faith determination. After all, what seems "fair" to one may not seem "fair" to another.
It is the individual responsibility of every instructor at Colorado State University—in compliance with federal law—to make good faith determinations regarding fair use of copyright-protected materials and be able to argue credibly in support of those determinations.
Here are the four main factors—as outlined in Section 107—to consider when determining the legality of using copyright-protected material without requesting or receiving copyright holder permission.
Factor One: Purpose and Character
A fair use evaluation is favored when the purpose and character of the intended use can be categorized as strictly nonprofit, educational or personal. Criticism, commentary, news reporting, teaching, scholarly work and research, are all examples favoring fair use.
On the other hand, if the purpose and character intends to further any "For Profit" commercial and/or entertainment venture, copyright holder permission is required.
Factor Two: Nature of the Work
Fair use favors the use of factual, non-fiction materials. Creative work, such as fiction, poetry, painting, dance, etc. highly favors asking permission.
Using published work is far safer than using unpublished work as it favors the exclusive right of a copyright holder to designate when and where a work was or is to be published.
Factor Three: Amount and Substantiality
A fair use evaluation is more likely to be favored when small amounts of copyright-protected material are used. This is not, by any means, absolute.
Should the essence of the work in question be a small portion of a larger piece, infringement may be a possibility. Any case that is even the slightest bit "iffy" calls for asking permission from the copyright holder before proceeding.
Factor Four: Market Impact
A fair use analysis is more likely to be favored when its intended use has only a negligible market-impact on the author’s earning potential. In other words, when the use of copyright protected material infringes on an author’s potential revenue stream, a fair use analysis is less likely.
NOTE: Market impact includes the payment of revenues—sanctioned by license and/or use permit—to the author. Bear in mind, the occurrence of market impact is considerably more likely when copyright protected materials are used repetitively over time.
Permission—even single-use permission—from those holding legal ownership of copyright protected material must be received, documented and, if required, paid for when a fair use analysis is not favored.
ANOTHER NOTE: The definition of those holding legal ownership of copyright protected material can—and often does—include institutions and/or estates.
Note: For a more comprehensive guide on Copyright Law exemptions for education, please see Copyright Essentials for Educators, a TILT Teaching Guide.