Copyright

Fair Use

Read more at the U.S. Copyright Fair Use index: https://www.copyright.gov/fair-use/


Fair Use Checklist

If you cannot find works (e.g. images, graphs, scholarly articles) that are not in the public domain or that do not have a Creative Commons License, then you may need to rely on fair use. You can learn more about fair use by taking the MIT Fair Use Quiz.


Four Factors of Fair Use:

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

 

Further Considerations:

There are four conditions to answer about a work before your analysis:

  1. The copyrighted work is a legal copy.
    1. 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 might not be able to use the work without permission from the rights holder(s).

    2. 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).

    3. If the website explicitly prohibits fair use or it prohibits you from downloading/copying content for your own use, you may not be looking at a legal copy of the copyrighted work. Therefore, you would not be able to apply fair use to your situation. Your choices may be to either seek permission or find a comparable work.

  2. You cannot find a suitable substitute for the copyrighted work (e.g. an image) via a search for a work in the public domain or with an open license.

    1. Search the Commons to verify that you cannot find a comparable resource.

  3. The copyrighted work that you are using is crucial for you to complete your scholarly work.

  4. You only use the amount needed from the copyrighted work to complete your objective.
    1. 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.


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, which can act as evidence of your good fair effort. In a court of law, a good faith effort can substantially reduce or eliminate statutory damages and lawyer fees.

However, this evaluator does not constitute legal advice. Consider speaking to an intellectual property lawyer is you are needing legal representation.


Interested in what fair use decisions have been made in court?

The U.S. Copyright Office keeps a list of fair use decisions that are most up to date:

Search Cases | U.S. Copyright Office