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Copyright

Fair Use

Fair Use is an exemption to copyright law that allows the use of copyrighted works without permission or payment of fees in order to encourage teaching, learning and scholarship. However, a fair use determination must be made for each intended use, and the answer may still be vague or murky. The only way to get a definitive answer on fair use is for a case to go to court and receive a ruling from a judge. However, this very rarely happens.

Before you make a fair use evaluation...

First, you should make sure that there are no suitable alternatives either in the public domain or with a Creative Commons License (CCL) that could substitute for the copyrighted work(s) (e.g. images, graphs, scholarly articles) you intend to use. If you can find suitable alternatives, then you may not have as strong of an argument for fair use. For example, if you want to use a picture of a dog, and you could have easily found a picture of a dog with a CCL (an open license that allows for your reuse), then your argument for fair use becomes noticeably weaker. Search the Commons to verify that you cannot find a comparable resource and review the terms of CCL to ensure you are complying with the terms of the license.

If you feel that you need to use a very specific and unique copyrighted work to complete your scholarly, educational, and/or creative objective, then you should also ensure that all of the following is true:

  • The copyrighted work is a legal copy.
    • Increasingly, websites are including terms of use on their sites, and these terms often cover the use of their copyrighted works on their website. If these terms of use do not allow for you to download a legal copy of its content for your own use, then you cannot use the work without permission from the rights holder(s). Search the website where you accessed the material for its terms of use and look for these key words in the terms of use:
      • "Downloading content is permitted as long as [ . . . ] the use is for your personal/own use"
        • This is an example of language that might be included in a website's terms of use; language may vary.
    • If the website explicitly prohibits fair use or it prohibits you from downloading/copying content for your own use, you may not have a legal copy of the copyrighted work. Therefore, you would not be able to apply fair use to your situation. You can either seek permission or find a comparable work.
  • The work that you are using is crucial for you to complete your analytical, scholarly, and/or creative objective.
  • You only use the amount needed to complete your objective; if you are using an image, you can fulfill the minimal use standard by reducing the resolution/DPI to a minimal level in order to complete your objective.

If you feel that you have met these conditions, you can now review the four factors of fair use and make a fair use evaluation. You can use the tools below to make a fair use evaluation and document it for your records.

Note of caution: When publishing copyrighted content publicly online, it is useful and helpful to provide context for any exemptions and/or permissions of the copyrighted content provided on your website or webpage. For example, you could publish a photo with a caption that states, "Published with permission from John Doe" or "Photo made available here under Section 107 of the U.S. Copyright Act following a fair use evaluation."

The Four Factors of Fair Use

For fair use, there are four factors to assess your use. Each factor should be weighed evenly, though it should be noted that the fourth factor has been weighed more heavily in many fair use lawsuits. Fair use is not a mathematical calculation, but rather a holistic consideration of all the factors. (Alternatively, download a PDF of "The Four Factors of Fair Use.")

Note: If the context or environment of your use changes, if the amount you use changes, and/or if the purpose of your use changes, then you will need to re-evaluate fair use.

1. Purpose of your use – why are you using the material?

  • In favor of fair use:
    • Scholarly and/or educational purposes
    • Transformative use (meaning that your work uses the existing work in a new and creative way)
    • Use is socially beneficial (promotes learning, creation of new knowledge, etc)
    • Use is not-for-profit
  • Not in favor of fair use:
    • Original work is simply duplicated, reused to its original intention
    • Use is not for criticism, comment, news reporting, teaching, scholarship or research
    • Use is for-profit 

2. Nature of the copyrighted work – What kind of work are you reusing?

  • In favor:
    • Original work has already been published
    • Original work contains little to no creative expression
    • Original work contains mostly factual information
  • Not in favor:
    • Original work has never been published
    • Original work contains a significant amount of new knowledge, information, or creative expression

3. Amount and substantiality of portion used – How much of the work are you using? (qualitative and quantitative amounts must be considered)

  • In favor:
    • Only limited portions used
    • Portion is not the “heart” of the work (central to the entire work)
    • Only the amount used achieves the stated purpose (from Factor 1)
    • If entire work used, it is needed to achieve the stated purpose
    • If using an image, a lower resolution or low DPI is used.
  • Not in favor:
    • Entire work or “heart” of work is used
    • Portion used is greater than what is needed to achieve purpose
    • High resolution of an image is used (higher than needed to complete objective).

4. Market effect – Does your use affect the market (i.e. economic value) of the copyrighted work, and if so, to what extent? (i.e. is your use act as an effective substitute for the original? If so, it likely affects the market value of the original)

  • In favor:
    • A market for the original work is absent or negligible
    • Your specified use does not affect the current market (if any) of the original copyrighted work
  • Not in favor:
    • The original copyrighted work has a clearly established market or a clear potential for a future market
    • Your intended use harms the market or potential market of the copyrighted work

Trademarks and Fair Use

Trademarks, like copyrights and patents, are another form of intellectual property. Trademarks are recognizable and can be signs, designs, expressions, words, or symbols that help identify products and services to others in order to distinguish those services and products from others. Starbucks® coffee is an example of a trademarked name. Trademarks must be distinctive and used in commerce. For non-use of a trademark over three consecutive years without adequate control or supervision or from the trademark becoming generic, trademark rights can be lost.

If you are using a trademarked logo, design, or name, you may have already determined that your use of the image or name is fair use under U.S. copyright law, but you will also need to consider whether it is fair use under U.S. trademark law. There are two types oftrademark fair use:

  • Descriptive fair use: use is permitted when using another's trademark to describe the user's products or services. For example, the trademark BREATHE BETTER LIVE BETTER® could be used to describe a health care program: "XYZ Asthma Therapy Center provides therapies that can help you control your asthma and so you can breathe better and live better." (Source: Lexology.com). 
  • Nominative fair use: use is permitted when referring to the trademark owner's goods or services. For example, you could refer to "the famous Seattle-based coffee shop chain," but it would be much more practical to simply refer to the company by its name, Starbucks®, and it falls within nominative fair use. If you are still uncertain, especially if you are using an image that represents the trademark, here are the factors to consider:
    1. The product or service in question is not readily identifiable without use of the trademark;
    2. Only so much of the mark as is reasonably necessary to identify the product or service is used, and;
    3. Use of the mark does not suggest sponsorship or endorsement by the trademark owner.
      Source: International Trademark Association

Essentially, if you are not using the trademark to sell or promote an actual good or service and your use does not confuse individuals with that good or service, your use could be considered fair use. However, "promoting or selling an actual service or good" is often misunderstood. You may not be making any money by using the trademark, but it could be considered promotional, and thus, it could be considered trademark infringement. For example, if you copy the K-State Powercat logo, send it to a T-shirt manufacturer, and have it printed, that would be considered unauthorized use of the trademark. You would either need to apply to become a licensee for K-State trademark promotion/apparel or seek permission from the K-State Trademark Licensing office.

Copyright Fair Use Tools and Resources

Fair Use Evaluator
Use the fair use evaluator tool in order to better understand the four factors of fair use and make your own evaluation of your use of a copyrighted work. The tool generates a PDF of the evaluation for your own records.

MIT Fair Use Quiz 
The MIT Libraries’ Office of Scholarly Publishing, Copyright, and Licensing launched an online Fair Use Quiz to help students better understand the core concepts of copyright law’s “fair use” provision, the flexible — but notably ambiguous — exception under US copyright law that makes it possible to use others’ copyrighted works without permission. The aim of the quiz is to put information about fair use in the hands of students and empower them to make informed decisions about using copyrighted works.

Code of Best Practices for Fair Use in the Visual Arts
The Code of Best Practices in Fair Use for the Visual Arts is based on a consensus of professionals in the visual arts who use copyrighted images, texts, and other materials in their creative and scholarly work and who, through discussion groups, identified best practices for using such materials. They included art and architectural historians, artists, designers, curators, museum directors, educators, rights and reproduction officers, and editors at scholarly publishers and journals.

Code of Best Practices in Fair Use for Media Literacy Education
This document is a code of best practices that helps educators using media literacy concepts and techniques to interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances—especially when the cultural or social benefits of the use are predominant. It is a general right that applies even in situations where the law provides no specific authorization for the use in question—as it does for certain narrowly defined classroom activities.

This guide identifies five principles that represent the media literacy education community’s current consensus about acceptable practices for the fair use of copyrighted materials, wherever and however it occurs: in K–12 education, in higher education, in nonprofit organizations that offer programs for children and youth, and in adult education.