What determines Fair Use?

According to Section 107 of the Copyright Act “. . . for purposes such as criticism, comment, news reporting, teaching (including multiple uses for classroom use), scholarship, or research is not an infringement of copyright.”  Subject to the following four factors: 

  1. The purpose and character of the use, including whether such a 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
  4. The effect of the use upon the potential market for or value of the copyrighted work 

 Fair use is about balancing of the 4 factors 

Four Factors of Fair Use

  • You do not need to meet all of the factors 
  • The more you meet the better 
  • Fair use is highly case specific 
  • Therefore, you must do case by case analysis of every image, text, etc 

Not all educational use is fair use  

Using rules of thumb like certain percentages or numbers of words is not actually protected – it is a better idea to use only as much as necessary to get your point across and not rely on certain numbers or percentages 

  • It is a common myth that any use under 10% or under 100 words is fair use 

The 4th factor may not be the most important factor, but it is an incredibly important one 

  • 4th factor dictates the risk you are taking on 
  • If you are working on something that has a healthy market and a copyright holder (e.g., Disney) is making a lot of money, then you are putting yourself at greater risk

Transformative Fair Use

A meme using the Grumpy Cat image that reads "I modified this image in case I get sued by this cat" in capital letters.

One of the factors weighing in favor of finding fair use is when the use of the original material is “transformative.” Transformative uses take the original copyrighted work and transforms the appearance or nature to such a high degree that the use no longer qualifies as infringing. What exactly is transformative use, and when does it apply?

The standards of “transformative” continuously evolve. Still, the status of a transformative work seems to be defined by two questions:

  • Has the material taken from the original work been transformed by adding new expression or meaning?
  • Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

One example that you see everywhere are memes! Think of Grumpy Cat or Success Baby – these memes take an image and transform them with new captions or text to convey new information.

I found a great resource. Can I use it?

Infographic: This image/article/quotation/clip is great! Can I use it?

Source: University of Pittsburgh Library System, Copyright and Intellectual Property Toolkit

Additional Reading

For more information, see Dr. Kenneth D. Crew’s full explanation (Links to an external site.).

Fair Use Basics:

Copyright Resources to Support Publishing and Teaching Links to an external site.

Fair Use ImagesLinks to an external site.

Links to Fair Use Databases:

Finding Open Access Images: Creative CommonsLinks to an external site.