Copyright at Babson

Detailed guide to answer all your questions about copyright issues, for students, faculty and staff.

The Four Factors of Fair Use

Fair Use is an often discussed and misunderstood provision of the United States Copyright Act, especially in academic environments. 

The United States Copyright Act does not explicitly set out what specific uses may be fair use.

Instead, the Act sets out types of uses to which a fair use defense might apply, and then lists four factors to consider in determining whether a use may be a fair use.

Fair use may be raised if the use is for a purpose such as criticism, comment, news reporting, teaching, scholarship or research. These are examples only of purposes for fair use. Courts determine fair use on a case-by-case basis, considering the following four factors: 

  • Purpose and Character of Use

If the use is of an educational or non-profit nature, it is more likely to be considered Fair Use than if it is of a commercial nature. 

If the use adds something new or has a different purpose or character than the original use, then it may be considered a “transformative use.” Similar to Fair Use, determining what is a transformative use is difficult, and done in the courts. 

  • Nature of the Copyrighted Work

Creative works are less likely to be considered Fair Use than factual works. Similarly, an unpublished work is less likely to be considered Fair Use than a published work. 

  • Amount and Substantiality of Copyrighted Work

Both the quantity and quality of the copyrighted material are considered in determining Fair Use. If the use includes a large portion of the copyrighted work, fair use is less likely to be found than if it is only a small portion. However, if the small portion constitutes the "heart" of the work, then it is less likely to be considered Fair Use. 

  • Effect on Market Value of Copyrighted Work

If the use of the copyrighted work will diminish its market value, the use is not likely to be considered Fair Use. 

Fair Use Checklist

The Fair Use Checklist and variations on it have been widely used for many years to help educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act). The four factors form the structure of this checklist.  Congress and courts have offered some insight into the specific meaning of the factors, and those interpretations are reflected in the details of this form.

You can access the checklist here, which was created by Columbia University Libraries, and is licensed under Creative Commons

Disclaimer

The information presented here is intended for information purposes only, and should not be construed as legal advice.