Fair Use is an exemption to the rights of copyright holders.
The Four Factors
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair. See the Fair Use checklist to consider how the four factors may apply to the work you wish to use.
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work; (fiction/creative or nonfiction/factual)
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work."
from the U.S. Copyright Office http://www.copyright.gov/fls/fl102.html
A best practice is to evaluate each copyrighted work you use in teaching and research using the Fair Use Checklist. Retain your completed Checklist in your files to show your good faith effort in case you are ever challenged.
Is Fair Use a law?
Yes, Fair Use is codified in Title 17, Section 107 of the U.S. Code.
Is Fair Use only for educators?
No, fair use applies to everyone, nonprofit and commercial users alike. There are, however, certain privileges for educational uses.
Is all educational use "fair use?"
What are some examples of ways copyrighted works can be used under the fair use exemption?
You can use small portions of a copyrighted work to comment and illustrate a point, report news, do research or scholarship, criticism or parody.
How much of a work can I use safely?
There are no amounts or percentages in the law. If you have heard of percentages, those most likely come from guidelines developed over the years by groups like CONFU, but these percentages are not written into the law. When using copyrighted work, use the least amount necessary. Although the law does not specify any amounts, copyright scholars seem comfortable with approximately 10% of a work. If however you have chosen the "heart of the work," a much smaller amount might fail the fair use test. The "heart of the work" of a book might be the pages with the key turning point of a story or the revealing motivation for a person's action. For a song, it might be the 4 second refrain that is recognized worldwide, across generations.
You may have more leeway with amount when you are creating a parody.
What is transformative use?
Think of this along with your first fair use factor. The nature of the use may be commercial or nonprofit, and nonprofit uses are always considered more favorably. If what you do with the copyrighted work adds new meaning, brings new value, or repurposes a work, you have transformed it beyond its original use. The problem with transformative work is that you may think a use is transformative, but the judge may not. It is not always predictable.
Stanford University has some examples to illustrate successful and unsuccessful transformative work.
How do I apply Fair Use in the classroom or in my distance education class?
For handouts in a face to face classroom, follow the suggestions in the Fair Use Checklist above. To avoid making copies, try to link to readings and let each student make his or her own. Links may be to library licensed databases or legal web content.
For performance and display in the face to face classroom, Section 110(1) is an exemption that covers the use of images, video and other performance. Read more...
For performance and display of learning materials in classrooms using digital transmissions (Blackboard, Moodle, etc), instructors may use Fair Use or cover the use of their materials under the guidelines of the TEACH Act.
Occasionally readings are needed that live outside library databases. That material can be placed into Blackboard if it meets a fair use analysis. For the performance and display of pedagogical material in classrooms using digital transmissions (Blackboard, Moodle, etc), see the tab for TEACH Act.
What's new with Fair Use?
Professional communities of practice are beginning to issue best practices for interpreting Fair Use. Some of these are: