Fair Use: What Is It?

Fair Use is an exception to the exclusive rights held by the owner of the copyright. 

In general Fair Use allows for the limited use of a copyrighted work by a person or organization that does not have the exclusive right to use that work.  Most importantly this use must be beneficial to society and it must not deprive the copyright holder of any significant financial reward.  The Fair Use exception is most often determined to be valid when a person or organization uses another’s copyrighted work for purposes of criticism, comment, education and parody.

The “rights” in copyright:

Creators of original published and unpublished works of literature, music, drama, dance, pictures, graphics, sculpture, motion pictures and other audiovisual works, sound recordings and architectural works can be granted, through copyright, the exclusive rights to those works.  These exclusive rights include the right to reproduce, prepare derivative works based upon the original work, distribute copies of the work to the public, and to perform and display the work publicly.

What is not protected in Copyright?

Several types of material are not eligible for copyright protection and thus would not require that a fair use analysis be made prior to their usage.  These works include works that have not been fixed in a tangible form of expression: 

1. Titles, names, short phrases, and slogans
2. Familiar symbols or designs
3. Listings of ingredients or contents
4. Ideas, procedures, methods, systems, processes, concepts, or devices
5. Works consisting entirely of information that is common property and containing no original authorship, such as information taken from public documents or other common sources

How to determine whether your use is Fair Use:

Generally the fair use of a copyrighted work includes the right to make copies and distribute the work for the purpose of criticism, comment, news reporting, teaching, scholarship, or research.

Factors to consider when determining whether a use falls within the Fair Use exception include:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished does not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.