Fair use is an exception under the copyright law that allows the use of copyrighted works without seeking permission or paying royalties. It consists of a four factor test where each factor is evaluated on how strong the fair use argument is for a specific use. The more factors that favor fair use, the greater likelihood that the use would be considered fair under the law.
First factor – Purpose and Character
This factor looks at the purpose of the use. If the work will be used for educational purposes including research and commentary then this factor would weigh in favor of fair use. If the work will be used for commercial gain, then this factor would weigh against fair use.
Second factor – Nature of the Work
This factor looks at the content of the work being used. The more creative a work is such as fiction, then the more protection it will enjoy. Since facts are not protected, then use of a factual work would weigh in favor of fair use.
Third factor – Amount
How much of the original work that is used is the focus of the third factor. Generally using a small amount would favor fair use whereas reproducing an entire work would favor permission.
Fourth factor – Market Effect
This factor considers if the use of the original work would cause harm to the market. Would the copyright holder be denied royalties? Would the new work be a substitute for the original work which would then cause harm to the market? If there is no impact on the market then the use would weigh in favor of fair use.
If none of the exceptions apply to your use of a work and the work is not in the public domain, then permission must be acquired to use the work. Permissions should be:
- in writing
- specific as to how the work will be used; how long it will be used; and how many students will have access to it
- Sent to the copyright owner of the work