11.04 Fair use

In the United States, fair use allows people to use copyright works under certain circumstances. It is generally best to only use your own content and public domain content but it is important for to be familiar with fair use for creative projects or ideas that may require the use of copyrighted works made by others. In regards to fair use, someone might say, “5 under fives seconds of a song is ok to use.” or “Less than 50% of a chapter is ok to use.” but the law never mentions these often misquoted copyright myths. The only way to ultimately determine if using a copyrighted work is fair use is to find out in a court of law.  Courts use a four-part test to determine fair use. ¹

1. Is the use commercial or for non-profit education purposes?
2. Is the original work creative or factual in nature?
3. Is the use transformative of the original? Is the use proportionate?
4. Does the use effect the potential market or value of the original?

Discussions of fair use quickly fallback to anecdotes and specific examples without examining the literal text governing copyright law. Section 107 of Chapter 1 of Title 17 of the United States Code covers copyright law and lays out the 4 factors to be considered in determining fair use as quoted below.

107. Limitations on exclusive rights: Fair use ⁴¹ 

Notwithstanding the provisions of sections 106  and 106A  , the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Section 107 of Chapter 1 of Title 17 of the United States Code 

Since each case of fair use must be decided in court and there are no guaranteed rules, it can be difficult for artists to determine ahead of time what will be fair use. The U.S. Copyright Office Fair Use Index  provides further explanation of the plaintext of the copyright law. Brian Frye  , the Spears-Gilbert Professor of Law at the University of Kentucky, basically says for artists and scholars to stop asking for permission when it is not needed such as public domain artworks or when working on scholarship since that perpetuates the idea the permission is needed for clear situations of fair use.²

• What is Fair Use? 
• Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities 
• Summaries of Fair Use Cases - Stanford Library 
• Journalism - Finding and Using Images, Maps, Video & Audio: Copyright and Images 

Articles

• AI Music RIAA Copyright Lawsuits Fair Use - The Verge 
• CAA News | College Art Association » Blog Archive » An Interview with Suzanne Preston Blier on CAA’s Code of Best Practices and Publishing with Fair Use | CAA 
• A fight to protect the dignity of Michelangelo’s David raises questions about freedom of expression | AP News 

Books

• Is It Ours? by Martha Buskirk - Hardcover - University of California Press 

Ipse Dixit Podcast Episodes on Fair Use

• Cathy Smith on Fair Use the Right of Integrity  
• Jacob Victor on Utility Expanding Fair Use 
• Cathay Smith on Political Fair Use 

References