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.
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:
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."
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?
2. Nature of the copyrighted work – What kind of work are you reusing?
3. Amount and substantiality of portion used – How much of the work are you using? (qualitative and quantitative amounts must be considered)
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)
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:
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.
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.