Under the fair use doctrine, you may use limited portions of copyrighted material in your work without the permission of the copyright owner. Before using media under the fair use doctrine, however, you will need to evaluate whether your use qualifies as fair. The fair use determination will depend on how much of the copyrighted work you are using and how you are using it. Fair use analysis is subjective and fact specific. To determine whether a particular use if fair, the following four factors must be weighed and balanced:
- The purpose and character of your use
- The nature of the copyrighted work
- The amount and substantiality of the portion taken
- The effect of the use upon the potential market
Evaluating the Four Factors
While academic and educational uses strengthen a fair use argument, there are limits to how much of a copyrighted work can be used under the fair use doctrine. Unfortunately, the law and subsequent court cases do not provide a lot of guidance on which uses are fair and which are infringing. There is no formula, percentage, or amount of a work that is automatically deemed to be fair use. Fair use determinations are made by evaluating what type of work you are using, how much of it you are using, and how you are using it. Fair use analysis must be done on a case-by-case basis and is subjective and fact specific. To determine whether a use is fair or not, all of the factors must be evaluated. Rights holders and users of copyrighted materials do not always agree on whether a use is fair, so conflicts can arise, and a particular use and could be challenged by the copyright holder.
Guidance for Evaluating Fair Use
Several organizations have created documents to assist faculty, students, and others in making fair use determinations for multimedia materials. It is important to note that none of these documents have the force of law and that rights holders may disagree with the principles set out in documents listed below.
Code of Best Practices in Fair Use for Online Video
“This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances” (Center for Social Media, 2008).
Code of Best Practices in Fair Use for the Visual Arts
"This Code of Best Practices provides visual-arts professionals with a set of principles addressing best practices in the fair use of copyrighted materials. It describes how fair use can be invoked and implemented when using copyrighted materials in scholarship, teaching, museums, archives, and in the creation of art." (College Art Association, 2015).
Statement on the Fair Use of Images for Teaching, Research, and Study "This Statement on the Fair Use of Images for Teaching, Research, and Study describes six uses of copyrighted still images that the Visual Resources Association (vraweb.org) believes fall within the U.S. doctrine of fair use." (Visual Resources Association, 2011).
Policy on the Use of ‘Thumbnail’ Digital Images in Museum Online Initiatives, (Association of Art Museum Directors, 2011). In this document, "AAMD reaffirms the critical importance of this legal exception to the missions of its members and believes that the application of fair use to internet media can be enhanced through reasonable guidelines to be established and followed by art museums."
Tools for Evaluating Fair Use
While academic and educational uses strengthen a fair use argument, there are limits to how much of a copyrighted work can be used under the fair use doctrine. In every case, all four factors must be analyzed. Try one of these resources to evaluate that you are using copyrighted materials appropriately:
- Fair Use Evaluation Worksheet
- Fair Use Evaluator (Michael Brewer & ALA Office for Information Technology Policy)
Introduction / What Can I Use? / Can I Claim Fair Use?
Video / Audio / Images