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Understanding Fair Use

Title 17 Section 107 - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— 

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Fair use is an important concept in U.S. copyright law. It is one of the primary mechanisms for balancing the interests of copyright owners and those of copyright users. Because of the fair use provision (and other exceptions to the law) copyright users may freely use and apply the work of others in a myriad of ways without requesting permission from or paying royalties to the creators. Fair use likewise acknowledges the rights of copyright owners to profit from the fruits of their intellectual labors. It is through balancing the rights of users and owners that fair use plays an important role in promoting the "Progress of Science and the useful Arts," a purpose enshrined in the U.S. Constitution.

For those who want to assert that their use of copyrighted material is a fair use, it is important to analyze the intended use with regard to the four factors stated in the law. It is through careful consideration of the four factors that one will identify the limits and boundaries of fair use as well as guiding the user to the opportunities provided by the statute. The challenge in any fair-use analysis is to arrive at a conclusion that the individual is comfortable with, that is reasonably supportable by a fair-use analysis, and that the user believes is fair to all interested parties. Remember, the name of Section 107 is “fair use.”

Like many aspects of copyright law, fair use requires one to balance the four factors, relying on both good sense and an “equitable rule of reason”.  As the result of this analysis, one may assert that an intended use is a fair use or may need to seek permission when the analysis suggests that course of action.  Balancing the four factors is an inexact process and one person's opinion may vary from another's.  Rather than attempting to achieve a formulaic “right” answer, the strength of a fair-use analysis results from careful consideration of the four factors and the interests of all involved.

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. See Plagiarism vs. Copyright Infringement.

The fair use provision may be applied to the use of all copyrighted works, even those in digital form. To determine whether any particular use is a fair use, you should conduct a case-by-case analysis based on the four factors above. There are a number of tools and guidelines to aid you in your analysis.


Content in this page was used or adapted with permission from one or more institutions. Please see acknowledgements.

Information in this page was reviewed and approved by legal counsel. Please see disclaimer. Review date: February 2007.

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