Fair Use is a defense, written into copyright law, that protects against liability for using copyrighted material without permission under certain circumstances. Fair use analysis must always be conducted on a case-by-case basis based on four factors. Each of the four factors must be applied and weighed together to make a case for fair use:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The 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.
The U.S. Copyright Office states “the distinction between fair use and copyright infringement is not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Also, acknowledging the source of the copyrighted material does not substitute for obtaining permission. The safest course is always to get permission from the copyright owner before using copyrighted material. When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation”.
The “Fair Use Checklist” prepared by the University of Nebraska general counsel is a helpful tool in assessing if you are applying Fair Use principals appropriately.
The following are a few summarized statements adopted from Supreme Court cases on fair use. They further support why there are no firm answers on fair use and why you cannot rely on specific precents or amount limits to avoid copyright infringement.
- In Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994) the Court states: [Fair use] requires case by case analysis rather than bright line rules. The statutory examples of permissible uses provide only general guidance. The four statutory factors are to be explored and weighed together in light of copyright's purpose of promoting science and the arts.
- In Harper & Row, Publishers Inc. v. Nation Enterprises, 471 U.S. 539 (1985) the Court uses the following cases to show even an insignificant amount of the work could be significant substantially to move that factor away from being a fair use: Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503 F.Supp. at 1145 (taking of 55 seconds out of 1 hour and 29-minute film deemed qualitatively substantial) and Meeropol v. Nizer, 560 F.2d 1061, 1071 (CA2 1977) (copyrighted letters constituted less than 1% of infringing work but were prominently featured).
- In addition, the Court quotes another a famous line on this issue of amount that also makes one think about how fair use is an affirmative defense rather than a right to use: Judge Learned Hand cogently remarked, "no plagiarist can excuse the wrong by showing how much of his work he did not pirate." Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (CA2), cert. denied, 298 U.S. 669 (1936).
For more information about Fair Use and Copyright Law consult the McGoogan Library research guide on Copyright, Fair Use, and Plagiarism.
