Fair Use

Fair Use is a legal defense that allows for the use of copyrighted materials to be used without the permission of the copyright holder and without infringing on copyright. Section 107 of the copyright act. Fair use allows for the copyrighted work to be used without the copyright holders permission for things like news reporting, teaching, scholarship, research, or art (illustrative purposes only). Unfortunately there are no hard and fast rules on what is considered fair use, however, there are guidelines one can follow in making a good faith effort. If you have any questions about copyright or fair use, , please email refdesk@neomed.com. 

Copyright law has established four factors to consider in determining fair use. They are: the purpose and character of the use,  the nature of the copyrighted work, the amount use, and the effect of the use on the market. Please be aware that these are factors for consideration and not hard and fast rules. Also, while each factor needs to be considered, the first and fourth factor usually weigh more heavily in the decision. 

Factor 1: The Purpose and Character of the Use 

Specifically this focuses on the whether the use is commercial or non-commercial. If it is for commercial use it is less likely to be considered fair use. Commercial being charging or making money from the item. This also focuses on transformative uses which add something new , further the purpose or a different character, and does not substitute for the original work. An example of transformative fair use, may be to take the original work and create an art piece. If it is transformative in nature it is more likely to be considered fair use. 

Factor 2: The Nature of the Copyrighted Work 

The nature of the work itself is the next factor. If the work is factual and non-fiction it is more likely to be considered fair use. If the work is unpublished then it will not favor fair use. Also if it is highly creative it tends to not be considered fair use. 

Factor 3: The Amount Used 

This factor compares the amount used to the amount of the copyrighted work as a whole. The less of the copyrighted work used, the more likely it is to be considered fair use. However, this factor also considers qualitative factors, if the portion of the copyrighted work being used is considered the "heart of the work", then this would mostly not be considered fair use. Note: there is a "rule of thumb" of about factor 3 that as long as the portion used is a chapter or 10% or less of the entire copyrighted then it is considered fair use, this is not true. 

Factor 4: The Effect of the Use on the Market 

Factor 4 considers the effect of not only the use of the item, but how this could effect the entire market for that item. If the use harms the owner's market for that material now or in he future, it will most likely be considered not fair use. If little or no money is lost it will most likely be considered fair use. In order for something to not be considered fair use, the portion used most have actual or most likely money lost. 

The information on copyrighted materials provided by the library in this guide not intended to substitute for and should not be construed as legal advice. For legal questions, contact Maria Schimer, JD, NEOMED's Legal Counsel (330) 325-6356.