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Copyright and Fair Use: Fair Use

A guide for creating and using copyrighted materials in education.

What is Fair Use?

Fair Use - Section 107
Identifies limitations on the exclusive rights of copyright owners for educational use of copyrighted materials.

Educational use is not always fair use.  Use the four factors of fair use to determine whether your use of a work will fall under fair use guidelines.

Fair Use in the News

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How much can I use?

Copyright law does not provide exact guidelines for how much of a work you can post for a course reading.  However, the Agreement on Guidelines for Classroom Copyright in Not-for-Profit Educational Institutions (see full text within Reproduction of Copyrighted Works by Educators and Librarians) provides the following definitions for brevity:

Article from a periodical Less than 2500 words
Book excerpt Not more than 1,000 words or 10% of work (whichever is less)
Poetry from a collection Complete poem if less than 250 words
Short story or essay from a collection Less than 2500 words
Illustrations One chart, graph, diagram, drawing, cartoon or picture per book or periodical issue

Note that these are not definitive guidelines but suggestions that must be weighed with the other three factors of fair use to make a proper determination.

Fair Use Checklist

Complete the Fair Use checklist to document your decision process, and demonstrate your attempts to apply a good faith effort to be in compliance with copyright law.

Tools

Additional online tools to help you make a fair use determination.

Disclaimer

This guide is intended to provide basic information and resources about copyright and does not constitute legal advice.

Unless otherwise noted, all content on the Copyright and Fair Use section of this site is licensed under a Creative Commons Attribution License.

Codes of Best Practice for Fair Use

A number of communities of practice have published Best Practices in Fair Use, which provide scenarios for how fair use rights apply to common educational situations:

Fair Use Factors

The four factors for making a fair use determination 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.

Source: Section 107 of the U.S. Copyright Act

Fair Use Checklist

The fair use checklist was developed to help educators, librarians, and others to evaluate  content using the four factors of fair use—purpose, nature, amount and effect. It can be used to document "reasonable and good-faith" attempts to apply fair use to materials used in courses.

When using the checklist, keep in mind that the four factors are not definitive or determinative.  Instead, they are to be used to evaluate if your use tips the scales toward fair use, or against it.  In the end, you must come to a conclusion you are comfortable with, and be satisfied with the reasoning you used to come to your decision. 

Download a printable Fair Use Checklist for your files.  By documenting your reasoning, you are preparing your argument for fair use in the event that your use is challenged in the future (in most cases, very unlikely).

Purpose
Factors favoring fair use:
  • Teaching or classroom use
  • Research or scholarship
  • Non-profit educational institution
  • Criticism
  • Comment
  • News reporting
  • Transformative or productive use
  • Restricted access (to students)
  • Parody
Factors opposing fair use:
  • Commercial activity
  • Profiting from use
  • Entertainment
  • Bad-faith behavior
  • Denying credit to original author

Nature
Factors favoring fair use:
  • Published work
  • Factual or non-fiction based
  • Important to favored educational objectives
Factors opposing fair use:
  • Unpublished work
  • Highly creative work (art, music, novels, films,plays)
  • Fiction

Amount
Factors favoring fair use:
  • Small quantity
  • Portion used not central or significant to entire work
  • Amount is appropriate for favored educational purpose
Factors opposing fair use:
  • Large portion or whole work used
  • Portion used is central to “heart” of work

Effect
Factors favoring fair use:
  • User owns lawfully acquired or purchased copy of work
  • One or few copies made
  • No significant effect on the market for copyrighted work
  • No similar product marketed by copyright holder
  • Lack of licensing mechanism
Factors opposing fair use:
  • Could replace sale of copyrighted work
  • Impairs market or potential market for copyrighted work
  • Available licensing mechanism for use of work
  • Affordable permission available for using work
  • Numerous copies made
  • You made it accessible on Web or other public form
  • Repeated or long term use

The Fair Use Checklist is used under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.