Fair Use is a legal doctrine that allows for limited use of copyright-protected materials without first obtaining permission from the copyright owner, or paying licensing fees. It is codified in Section 107 of US Copyright Law.
the fair use of a copyrighted work including such use by reproductions in copies or phonorecords or by any other means specified...for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright" -17 U.S. Code § 107
Whether or not a use counts as "fair" is determined by four factors:
- Purpose and Character of use: This factor pertains to how the copyrighted work is being used. Is it for a use different from the original (AKA are you transforming the work?) Is it being used for educational purposes? Are you profiting off of this use?
- Nature of the Copyrighted Work: This factor is about the copyrighted work itself. Is it based on fact, like a news article? Or is it a creative work, like a novel or a painting?
- Amount and Substantiality of the Portion Taken: The amount of the copyrighted work being used as well as the quality of the material - is the portion used the "heart" of the work? Is the amount and portion being used appropriate to the new use?
- Effect on the Market or Value: Does the use affect the current or potential market for the copyrighted work? Can it be used as a substitute for purchasing the original work?
Courts will evaluate whether each factor ultimately favor or disfavor a Fair Use argument, however, the decision isn't a simple matter of tallying which side has the most factors. The factors are weighted differently and courts may find that one factor favoring is more important than three factors disfavoring.
In more recent cases, courts have been found to place the most weigh on the first factor and whether a use can be considered transformative - does it take the work and use it in a way that is different from the creator's original intention? This often bodes well for educational uses of works intended for entertainment, such as feature films.
If you are planning to make a Fair Use argument, fill out the RIT Fair Use Analysis form and keep a copy on hand. While this does not guarantee that your argument will necessarily be seen as Fair Use in a court of law, it will help you think through each of the factors and provide documentation of your thought process, should any questions arise.
To be clear, the only way to know for sure if your use counts as "fair" is to be taken to court and have a judge or jury rule in your favor. However, this should not deter you from taking advantage of this doctrine in its entirety.
One way to get an idea of how a court might rule is to look up similar cases:
See the section on Captioning and Accessibility for an example of a Fair Use analysis in a court case.
