This guide intends to refer NWC community 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. The appearance of hyperlinks does not constitute endorsement by NWC of sites or the information, products, or services contained therein, nor does NWC exercise editorial control over the information found at these locations. Such links are provided consistent with the stated purpose of this guide. U.S. copyright law is subject to change.
Fair Use (17 U.S.C. § 107) is the most flexible facet of U.S. Copyright law and is designed to protect the right to use copyrighted material without permission or payment for specific purposes in specific ways (especially in “criticism, comment, news reporting, teaching, scholarship, or research”). It is case-specific and must be analyzed each and every time a work is desired to be used.
In order to qualify as fair use, a use must pass what's called a "four factor" test. No one factor is decisive; they must all be weighed together. Fair use is a fact-specific weighing of the following four factors:
In a classroom environment, one overarching question to ask yourself is if the quotation, image, or video/music clip will be subject to analysis or is it necessary, because without it you will not understand the pedagogy? Is it necessary to hear, see, or read it in order to understand the pedagogical point?
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 (a) four-factor balancing test together" (Kyle K. Courtney, 2020).
University System of Georgia has an excellent analysis of fair use on their Fair Use Exception page.
Factor 1: What is the purpose or character of the use?
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.
Factor 2: What is the Nature of the Copyrighted Work Being Used?
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.
Factor 3: What Amount of the Copyrighted Work is Being Used?
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. 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 or not.
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.
Factor 4: What Effect with the Use have on the Potential Market for the Work?
Is the use in question substituting for a sale the source’s owner 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 NWC Copyright Office can help assist with this type of licensing research to help inform your fair use analysis of the 4th factor.
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 to place on a Leganto reading list, please contact libraryreserves@usnwc.edu. If your request is for outside of Leganto placement, purchase requests can 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 e-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 protection and informing users of their legal requirements 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 analysis is determined as fair.
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).
You are not required to submit any analyses to the NWC Copyright Office. Please retain them according to your specific department's instructions. The NWC Copyright Office, however, is happy to assist with any informational inquiries during your analysis process.
Fair use is the foundation for a library's course reserve platform. Please use these NWC resources to help you with your good faith fair use assessments and determinations:
To help you assess whether your proposed use of copyrighted material is a fair use, complete the online form provided by the Fair Use Evaluator. Print out and keep a copy of this time-stamped record so in the event you are asked by a copyright owner or a court of law how you arrived at your decision, you are prepared to show your good faith effort.
Adapted from George Mason University CC-BY 4.0 International License
