This guide intends to provide and refer users to accurate information. However, information received from the NWC Library or the NWC Copyright Librarian is neither legal advice/opinion nor legal counsel to the college or any members of the NWC community. Please contact the NWC Office of General Counsel or NWC Staff Judge Advocate's Office for NWC-related legal advice and interpretation of the law, or personal counsel for personal legal advice. U.S. Copyright Law is subject to change.
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Fair use is a limitation on someone's ability to assert copyright infringement. In federal court, fair use operates as a defense that an individual can assert if sued for infringement. Fair use is a case-by-case four factor balancing test and only a federal judge can make the ultimate determination on whether a particular use is a fair one.
The distinction between "fair use" and infringement can be unclear and it is not easily defined. Fair use determinations are not based on a mechanical application of the four non-exclusive fair use factors. Instead, all factors are to be explored based on its own facts and the results weighted in light of the purposes of copyright.
The fair use determination statutory framework can be found in 17 U.S.C. § 107.
The preamble to § 107 provides that reproduction of copyrighted works may be made for "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research..."
Thus, academic uses may qualify as fair use. There are a few things to be aware of, though:
Keeping those points in mind, the four fair use factors provided in 17 U.S.C. § 107 are:
Please keep in mind when weighing your desired use of a copyright protected work for fair use: "adding up the factors is not an exact science. Fair use is not a rigid formula that leads to a clear-cut answers telling users when it's okay to use (a) work without permission. Instead, fair use is meant to be a flexible approach that weighs all the results of (the) four-factor balancing test together" (Kyle K. Courtney, 2020).
In considering this factor, federal judges typically look to the purpose for which the user intends to use the work. If the purpose is for educational purposes or research purposes, that would weigh in favor of fair use. If the purpose, on the other hand, is to make a profit or for commercial gain, that would weigh against fair use.
Educational use is much more likely to fall within the range of fair use. In general, courts are less likely to consider use fair if the use is for profit.
Importantly, courts also consider whether the use is a transformative one. A transformative use is one that alters the original work "with new expression, meaning or message..." Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994). Interestingly, since this interpretation of factor one was first introduced by the Supreme Court in 1994, courts have expanded their application to all of the other factors. In other words, the more transformative a work is, the less the "negative" weight of the other factors would impact the analysis. Examples of transformative uses may include parody or news reporting.
For instance, in the Google Books decision (see Author's Guild v. Google, Inc., 804 F.3d 202 (2015)), even though Google Books is a commercial enterprise (negative weight under factor one), and was copying entire books (negative weight under factor three), the fact that the "snippet" view used by Google Books was transformative made the use a fair one in the opinion of the Second Circuit Court of Appeals (note: this case was never decided at the Supreme Court level).
What are you attempting to do with the use you are making of the copyrighted work?
This is the only factor that deals with the proposed use - all the others deal with the work being used. Purposes that favor fair use may include education, scholarship, research, and news reporting, as well as criticism and commentary more generally. Non-profit purposes also may favor fair use (especially when coupled with one of the other favored purposes). Commercial or for-profit purposes may weigh against fair use. Your use of an excerpt must fulfill a demonstrated legitimate purpose in the course's curriculum and be narrowly-tailored to accomplish that purpose. Remember, not all educational uses are fair.
Is your intended use "transformative"?
A transformative use is one that is new or unexpected. Parody, critical analysis, and critical commentary are the most easily identified forms of transformative use. Legal analysis about this kind of transformative use often engages with free speech issues.
Courts consider “whether (a) new work merely ‘supersede[s] the objects’ of the original creation (‘supplanting’ the original), or instead add something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579 (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4,4901) (Story, J.) and Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985)). A second work that “comment[s]” on, “critici[zes],” or otherwise “shed[s] light” on an earlier work, Campbell, 510 U.S. at 579, 581-582, serves a different purpose than the original. Harper & Row, 471 U.S. at 557-558, showed it was not fair use where the infringer failed to show “actual necessity” or “independent justification” for unauthorized copying. Conversely, borrowing is least likely to be justified when “the alleged infringer merely uses [the original work] to get attention or to avoid the drudgery in working up something fresh.” Campbell, 510 U.S. at 580. Nor is copying permitted to escape “paying the customary price,” Harper & Row, 471 U.S. at 562.
The nature of the work refers to whether the work was published (more likely to be considered a fair use) or unpublished (less likely to be considered a fair use) as well as whether the work is factual/historical in nature (more likely to be a fair use) or highly creative (less likely to be a fair use).
This is a difficult one to grasp, but in general, published and factual works are more likely to be considered fair use cases than unpublished and fictional works.
Has the work you wish to use been published already?
It is less likely to be fair to use elements of an unpublished work. Making someone else's work public when they chose not to is not very fair. Nevertheless, it is possible for the use of unpublished materials to be legally fair.
Is the work you wish to use more "factual" or more "creative"?
Borrowing from a factual work is more likely to be fair than borrowing from a creative work. This is related to the fact that copyright does not protect facts and data. Remember, the way someone presents the facts may be considered creative or their analysis of the facts may be considered creative.
This factor considers how much of the protected work was taken. Did you make a copy of just a paragraph? Or did you copy an entire book? It is also important to consider the quality of the work taken, not just the quantity. For instance, courts take into account whether the "heart" of the work was taken, not just whether a substantial portion was reproduced.
Reproduction of the entire work is rarely considered fair use. The use of a small, relevant portion is less risky, so long as that portion is not the "heart" of the work. Evaluate that you are using "just enough" and no more to reach your educational objective(s). Think about using a "decidedly small portion." Your use of an excerpt must fulfill a demonstrated legitimate purpose in the course's curriculum and be narrowly-tailored to accomplish that purpose. Does the amount needed serve the purpose of the use?
There are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use (Maxtone-Graham v. Burtchaell). Guidelines with chapter counts or percentages carry no force of law and provide no safe harbor against infringement. This idea has been supported in copyright case law. This factor is a judgment call that one should be prepared to justify should the use of the work ever come into question.
The portion used must be reasonable in relation to the work from which it was taken and the purpose for which it was used (Campbell, 510 U.S. at 586). Generally, a decidedly small portion of the work is more likely to be fair, especially when the excerpt is a mirror-image copy, and the purpose is non-transformative (Id.). “Fair use analysis must be performed on a case-by-case/work-by-work basis” as no bright-line rules apply (Cambridge II, 1271–72, citing Campbell, 510 U.S. at 577 at 1170). “To treat the Classroom Guidelines as indicative of what is allowable would be to create the type of 'hard evidentiary presumption” that the Supreme Court has cautioned against'” (Cambridge II, 1273, citing Campbell 510 U.S. at 584). To learn more, please read Copyright and Libraries: Georgia State Copyright Lawsuit (2020, CC-BY).
How much are you using relative to the whole?
A use is usually more in favor of fair use if it uses a smaller amount of the source work, and usually more likely to weigh against fair use if it uses a larger amount. But the amount is proportional. So a quote of 250 words from a 300-word poem might be less fair than a quote of 250 words from a many-thousand-word article.
As a general rule, one should use no more than is necessary to illustrate one's point ("a decidedly small portion"). In the classroom setting, the portion of the work being used should be discussed in the classroom with commentary and fit a true essential learning objective of the course (using a work as a supplementary, recommended, or an optional reading is not a fair use). Only use just as much as is necessary to serve your purpose. Remember, there are no safe percentages or chapter counts that qualify one's use as fair.
How substantial is what you are using?
The closer what you are using is to the "heart" of the work, the less fair the use. The more peripheral, the fairer the use.
Follow best practice guidelines of relevant disciplinary stakeholder groups
Many groups have collaborated to document consensus opinion regarding best practices around fair use in specific disciplines. These are only guides and not the law, so proceed with caution and always refer back to the text of the law. These guides are available through the Center for Media & Social Impact (this site includes ARL's Code of Best Practices in Fair Use for Academic and Research Libraries). Please determine your risk-tolerance when using these guides for informational purposes.
In this factor, courts generally consider whether the use of the copyright protected work would replace or cut into the potential market for or value of the original work. What would happen if everyone decided to use the work in the same way? Would it cut into the potential market or value of the work? The law attempts to protect creators with this factor consideration.
Questions to consider:
"When copyrighted materials are still in print and being marketed, and/or when a licensing mechanism is available for use of the copyrighted work, the fair use argument is weakened because the use conflicts with a market for the work. Consider whether the work is available for purchase, and whether the work is available through a license. The date of publication and the publisher may also be considered. Recent works typically raise more questions than older works." (Rutgers Guide)
Analysis of the fourth factor “requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also 'whether unrestricted and widespread conduct of the sort engaged in by the defendant...would result in a substantially adverse impact on the potential market for the original'" (Campbell, at 1177). To learn more, please read Copyright and Libraries: Georgia State Copyright Lawsuit (2020, CC-BY).
In the Georgia State University (GSU) e-reserve case (first filed in 2008), the court emphasized that there are two markets to consider for the fourth factor:
"The amount used in the alleged infringements in the GSU case averaged around 10%, '[t]herefore] this case [now] concerns not the market for Plaintiffs’ original works themselves or for derivative works based upon those works, but rather a market for licenses to use Plaintiffs’ works in a particular way'" (Cambridge III, 1233). "However, since the 'goal of copyright is to stimulate the creation of new works, not to furnish copyright holders with control over all markets. Accordingly, the ability to license does not demand a finding against fair use” (Cambridge II, 1276, 11th Cir. 2014). To learn more, please read Copyright and Libraries: Georgia State Copyright Lawsuit (2020, CC-BY).
If your use stands in the way of potential sales for the creator or is easily available for a reasonable price, you should consider licensing or purchasing copies/an electronic version rather than copying. For more details, please see the "Copyright Licensing Fees vs. eBook Purchase" tab in the box below.
Potential example:
Is the use in question substituting for a sale the source’s owner (rightsholder) would otherwise make, either to the person making the proposed use, or to others?
Generally speaking, where markets exist or are developing, courts tend to favor them. Nevertheless, it is possible for a use to be fair even when it causes market harm.
For licensing availability awareness, it is helpful to do a quick title or standard number (ISBN/ISSN) search in Copyright Clearance Center's Marketplace (CCC). The license purchased will only cover the use of a work (for books, only a small portion) for a short duration of time under certain terms; CCC will not provide a copy of the work. Sometimes, the publisher directly provides a mechanism for paid licensing (e.g., Naval Institute Press). The Copyright Office can help assist with this type of licensing research to help your weighing of a fair use determination.
The library can also assist in researching the availability of eBook versions of a title with unlimited user access. If you are requesting an item for E-Reserve Leganto please contact libraryreserves@usnwc.edu. If your request is for outside of Leganto, purchase requests may be submitted through the Library's Primo site (you will need to login to Primo with your NWC credentials in order to submit the request).
In the case of reserves, if neither licensing mechanisms nor digital versions of the title exist, there will be less market harm. Please keep in mind, though, that if a book is "out of stock" or "out of print," it does not mean the work is not protected by copyright laws.
To support copyright compliance, NWC's reserves platform (Leganto) is password-protected, available only to students currently enrolled in the course, and available only for the duration of the specific course. Disclaimers regarding copyright compliance also pop up, need to be reviewed, and clicked by users before accessing a resource through Leganto. These steps do not provide a safe harbor for fair use, but are important steps to show a good faith effort to prevent further dissemination once a fair use is determined as a fair one.
Having difficulty accessing a library-licensed resource? Please email libraryfeedback@usnwc.edu
There are many useful online tools to guide a fair use analysis as well as the NWC Fair Use Analysis. It is a good idea to document your fair use determination made in good faith, and keep it on file as a record of your fair use decision (could potentially be used as a legal document).
Fair use decisions are subjective and need to be made by the person utilizing the protected work (in an academic course, it would be the instructor who is most familiar with the work and the learning objective(s) of the course). Remember to make case-specific determinations, not global ones, each and every time you want to use a work. The four factors should be thoughtfully worked through and weighed in balance with each of the other factors.
"Knowing and applying (a) fair use analysis correctly...gives you (a) positive factor that is not mentioned in the (fair use) statute: a reasonable belief, formed in good faith, that the use qualifies as fair" (Kyle K. Courtney, 2020).
If you deem your use not to be a fair one, please obtain permission to use the work or find alternative resources (including library-licensed materials).
Things to remember in the fair use decision-making process:
Steps to strengthen responsible fair use analysis and to show good faith efforts within the Leganto platform (for citations and courses) include the following:
While working through the Copyright Inquiry Framework, you may determine you need permission licensing. Sometimes it is more cost efficient to purchase a licensed eBook version of a book with unlimited or multiple user access than it is to purchase a one-time copyright license from the Copyright Clearance Center. If you are requesting an item for E-Reserve Leganto please contact libraryreserves@usnwc.edu. If your request is for outside of Leganto, purchase requests may be submitted through the Library's Primo site (you will need to login to Primo with your NWC credentials in order to submit the request).
For one-time copyright licensing information and availability, a quick title or standard number (ISBN/ISSN) search can be done through the Copyright Clearance Center (CCC) Marketplace. The license purchased will only cover the use of a work (for books, only a small portion) for a short duration of time under certain terms; CCC will not provide a copy of the work. Sometimes, the publisher directly provides a mechanism for paid licensing (e.g., USNI). The Copyright Office can assist with this type of licensing research to help your fair use determination.
In the case of reserves (Leganto), if neither licensing mechanisms nor digital versions like an eBook with multiple/unlimited users of the title exist, there will be less market harm (factor four). Please keep in mind, though, that if a book is "out of stock" or "out of print," it does not mean the work is not protected by copyright law.
In your fair use analysis, if you are re-evaluating a use of a previously used work, it is important to see if market availability for licensing or an eBook has changed. This will affect your weighing of the fourth factor (market harm).
Having difficulty accessing a library-licensed resource? Please email libraryfeedback@usnwc.edu
ARL's "Code of Best Practices in Fair Use for Academic and Research Libraries" (2012) lists foundational best practice principles to support reasonable and good faith efforts in fair use and adhering to copyright law in the library. These best practices are not written explicitly in copyright law, so please be aware of your risks.
"PRINCIPLE: It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks."
This principle is further supported with the following limitations (that "should be observed to assure that the case for fair use is strong"):
These limitations are enhanced with the following efforts ("but are not prerequisite to support a strong fair use rational"):
Though receiving a verdict in a federal court is the only way to definitively establish a particular use as fair use, don’t let that be intimidating. Previous rulings on fair use provide information about what is likely or unlikely to be considered fair use in other situations.
The United States is a common law system, which means that laws are developed through court cases in addition to the statutory laws implemented by Congress. When similar cases are tried in a court of law, judges refer to the existing case law to inform their decisions, and they are even required to follow the legal precedent if it came from a higher court in their same jurisdiction, or from the U.S. Supreme Court.
This page includes several tools and checklists to help you evaluate the four factors of fair use as they apply to different situations. These analyses rely on legal precedent, meaning they are based on the existing case law pertaining to fair use. The resources linked below provide summaries of cases involving fair use, which can help one see how judges have applied the four factors of fair use in practice:
The only case that has involved academic educational use of in-copyright works in an e-reserve program began April 2008 in federal court where three academic publishers filed suit against four officers of Georgia State University. The following links will bring you to the final order (September 2020) and final opinion (March 2020):
When does fair use apply?
Fair use frequently functions as an exemption to the copyright law for educational and socially important purposes such as teaching, research, criticism, commentary, parody, and news reporting; however, you cannot assume that all educational use is fair use. Anytime that you wish to use copyrighted material, you should consider all of the four fair use factors.
Does fair use automatically permit all educational uses?
No. Having an educational purpose weighs in favor of fair use. However, it can still be outweighed by the other fair use factors and sub-factors.
If I have determined that it is fair use to use a work in one trimester, do I need to reassess fair use if I use the work again in another trimester?
Yes. Fair use should always be assessed each and every time you want to use a work. For instance, the scope of fair use is broader if there is no way to license or purchase copies of a work (including an electronic version). If copies (electronic or physical) or licenses become available, this would change your fair use analysis. This is why it is important to set the start and end dates for each course in Leganto or Blackboard, so works are not used year after year without reassessing for fair use, and so that students do not have continuous access. Students should also be advised that the course content is covered by copyright and should not be disseminated further (for personal, educational use only).
How do I know if my intended purpose is within the limits of fair use?
The fair use statute provides the framework for the analysis and application of the four fair use factors. This means that the law lacks specificity, but it also means that fair use is flexible enough to be applied in a wide variety of situations. Congress deliberately created fair use to flexible so that it could apply to many different situations. It can be difficult to determine if your intended use fits within the limitations of the fair use statute. Fortunately, there are a number of very useful tools available online to help you consider the four fair use factors as they apply to your intended use. See the Fair Use NWC Resources and also the Fair Use Tools sections for more details. Here is a video on using a fair use checklist for more information on conducting a fair use analysis.
Will limiting access to the work improve the fair use case?
In general, limiting access to the work shows good faith efforts in a fair use federal case, but it does not replace evaluating each of the four factors of fair use. Limit access to materials on your course website to students and necessary course personnel only. Also, limit the length of time a work is available on the course website in order to improve good faith efforts in a fair use case. A copyright best practice in Leganto is to set the start and end dates of the course and limit the course to publishing status "Course Students" (Course students -only- can view the reading list and view the course materials).
It is important to advise course students and personnel that the material is provided to them based on fair use and it is for their personal and educational use only; they should not disseminate it further.
Does fair use permit me to post library materials on my course website?
Sometimes. Whether fair use permits you to copy any particular work or a portion of a work for use on your course website has to be determined on a case by case basis weighed analyzing the fair use factors. If the library resource you want to use is a licensed electronic resource, such as an eBook or an electronic article, your use of the item will depend on contractual terms in addition to fair use. In general, it is best to link to those licensed items instead of posting copies on your course website (excluding Harvard Business Review/Publishing resources- these contractually may not be linked to). Librarians can help you find alternative library resources that meet the learning objective(s) for your course. Also, the library may be able to purchase access to an available eBook that allows a greater number of simultaneous users.
What if a work is out of print and not available for licensing? Does that improve the fair use case?
First, note that being out of print is not the same as being in the public domain. If you believe the work is in the public domain, you may wish to consult the public domain resources section of this guide before making a fair use analysis. For in-copyright works, being out of print and unavailable for licensing will generally weigh in favor of fair use. Specifically, it will improve the fair use case under the fourth factor (market effect). However, some uses of out-of-print and un-licensable works would not be fair (for example, using an entire work). Be sure to consider all of the fair use factors when weighing your analysis of your desired use of a work.
What if I only post a small percentage of a work on my course site (Blackboard or Leganto), such as one chapter from a twenty-chapter book or 10% of a book? Does that improve the fair use case?
Using less of a work will generally improve your fair use case. However, there is no fixed percentage below which all uses are fair. Some uses of small amounts of works are not fair (for example, if it is the "heart" of the work). Conversely, it can be fair use to use the entire work in some cases (for example, an image that is not high resolution). Be sure to consider all of the fair use factors when making your analysis.
Should I document my fair use decisions? How?
It is not necessary to document your fair use analysis in order to rely on it later in federal court. However, keeping records of your fair use analysis/decision notes can make it easier to review them and is an academic fair use best practice. Those records may be helpful if you want to review fair use decisions made by others (e.g., department staff and adjunct instructors) or if you will be using a work again and need to review your previous fair use determination for any changes (e.g., electronic version or licensing availability). A Fair Use Analysis/Checklist is helpful as a guide for those who are learning to apply fair use (please see the resources and tools boxes for links to example analyses).
Please see 17 U.S.C. § 504 (c)(2) for more details on the remission of statutory damages when good faith efforts in fair use evaluations are implemented by employees of a nonprofit educational institution, library, or archives acting within the scope of their employment.
What if my use is outside the limits of fair use?
If you complete a fair use analysis and determine that your intended use does not qualify as fair use, you have a couple of options. First, you can obtain permission directly from the copyright holder. This process can take time and may involve paying some form of royalty or licensing fee (usually only for a one-time use/not in perpetuity). Your second option is to reconsider your intended use. You can review your fair use analysis and determine which factors of your intended use most oppose fair use and make changes to be more favorable. For example, you could reduce the amount of material or choose content from different works that might be more favorable to fair use. Better yet, you could find comparable works in the public domain, Creative Commons-licensed works, or library-licensed works that would meet your purpose. Please see Where to Find Alternative Resources for more details.
What if I feel uncomfortable relying on fair use?
Reach out to the reference librarian team for suggestions on alternative high-quality library subscription content with terms of use that fit your use or to see if they suggest alternative publicly and legally available content. Asking permission from the copyright owner is another option, but it may be difficult to negotiate a license in a short timeframe. In many permission cases, be prepared to pay a licensing fee.
Please use these NWC resources to help you with your good faith fair use assessments and determinations:
Frequently, researchers wish to utilize charts or graphs of factual data created by another author in their own research or publication. As noted on the Copyright Law page, copyright protection does not extend to protect facts. The question, then, is whether copyright protection extends to the "arrangement" of facts as presented in charts and graphs. Generally speaking, if there is only one real way to present the data, whether it be a pie chart or a graph, the factual representation is not protected by copyright.
Whereas, if there is some amount of creative expression involved in the arrangement of the factual information (for instance a painting depicting factual data gathered from daily temperature readings), then the arrangement of the data would be protected as a creative expression.
For more information about one interpretation of whether the display of factual data is protected by copyright, see Copyrightability of Tables, Charts, and Graphs [PDF] (Bobby Glushko, 2011, CC-BY).
Innesw, Chart SVG Example 5 -Simple Pie Chart.svg, commons.wikimedia.org, CC-BY-SA 3.0