Copyright & Fair Use

Fair use is a right that may be exercised by people using others' copyrighted works without first seeking permission from the copyright holder.  It is wise to establish a habit of analyzing your use of others' copyrighted works under the fair use guidelines and if determined fair, then attributing that portion of the work to the original creator.

In this short video you will learn about fair use, the four factors that determine whether a use of a copyrighted work is fair, and examples of each of them from famous fair use cases. This resource was created by Berkman Klein Center's Youth and Media team in collaboration with the Harvard Cyberlaw Clinic. This video has a Creative Commons Attribution license.

Fair use is codified by the U.S. Copyright Act of 1976 as amended (17 U.S.C. §107).  The statute provides guidance to determine whether a use can be considered fair.  There are no bright line rules, but rather a balancing of four factors serves to indicate whether the intended use is fair or not.  Only a court of law can make the final determination should your use be the cause of litigation.

*NOTE*: Not all use in a nonprofit educational institution is or should be considered fair use.  Neither does merely attributing the work to the creator support a fair use argument. 

Start by reviewing the four factors and decide whether your interpretation of that factor in relation to your intended use weighs in favor or against fair use.  The four factors are:

1. The purpose and character of your use / whether your use is for commercial or nonprofit educational purposes / or whether your use significantly transforms the original work.
2. The nature of the work you want to use.  Is is highly creative or more factual using less creativity?
3. How much of the work do you plan to use?  Is the amount or substantiality of the portion used the minimum needed to get your point across or are you using the "heart" of the original work?
4. Is there an existing market for the work that your use might undermine or usurp?

Once the analysis is complete, see whether on balance, more factors weigh in favor or against fair use.  This exercise should be completed for every third party copyrighted work you want to include in your own work.

A number of tools are available to help you determine if your use is fair:

• Yale's Fair Use Analysis Tool guides you through an analysis of your project/work in terms of the four factors.  You best know how you want to incorporate third party copyrighted works into your own. 
• Michael Brewer & the American Library Association's Office for Information Technology Policy Fair Use Evaluator is a reputable online tool that walks you through the four factors.
• The Fair Use Checklist created by Kenneth Crews (formerly of Columbia University) is helpful in conjunction with a narrative analysis to suggest use elements that can be included in the narrative.

In all cases, if you use a tool to analyze the four factors or if you undertake your analysis in some other format, KEEP A COPY OF THE ANALYSIS with your project.  You never know whether you will ever be called upon to justify that you undertook a good faith effort to support your assertion that your use was a fair use.

• Associate of Research Libraries' Code of Best Practices in Fair Use for Academic and Research  Libraries (January 2012)
• Center For Media & Social Impact--Codes of Best Practice provides guidelines on best practices for reuse of copyrighted materials.  These should NOT be considered legal advice, but merely guidance by professionals experienced with various classes of works.
  • Code of Best Practices in Fair Use for Online Videos (June 2008)
  • Association for Recorded Sound Collections (ARSC)--ARSC Guide to Audio Preservation
  • Visual Resources Association--Statement on the Fair Use of Images for Teaching, Research, and Stud
  • Statement of Best Practices in Fair Use of Collections Containing Orphan Works for Libraries, Archives, and other Memory Institutions (2014)
• U.S. Copyright Office's Fair Use Index (search index of cases that reference fair use)

Test your understanding of Fair Use with the Fair Use Quiz from MIT: https://libraries.mit.edu/files/ospcl/fair-use-quiz/ 

Get a better undestanding of the fundamentals of Fair Use from this handy infographic from the Association of Research Libraries:

Some information on this page was taken from the "Yale University Library Copyright Guidance: Using Copyrighted Works" guide found at https://bit.ly/2FaBuov and licensed under a Creative Commons Attribution 4.0 International License.

The intent of this guide is to provide employees of Cincinnati Children's with information pertaining to copyright law and fair use.  In no way does this guide constitute, or take the place of, legal counsel.  This guide was compiled for educational purposes only.  Any content presented on other's sites are for user's convenience only and Pratt Library and/or Cincinnati Children's does not take responsibility for anything presented on these third party sites.