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Copyright, Fair Use, & Image Resources

Guidance on copyright and fair use of copyrighted materials

Fair Use

What is Fair Use?

Copyright law provides for some built-in protections for First Amendment interests through what is called fair use. Fair use is the right to use copyrighted material without permissions or payment under certain circumstances.

Fair use puts limits on exclusive rights of copyright owners and allows certain uses of copyrighted works without permission or payment. Copyright law lists four nonexclusive factors that are used to determine fair use:

  1. Purpose of use.
    Is the use for education or research or is it for profit?
  2. Nature of the work.
    Is the work fiction or non-fiction?
  3. Amount of the work used.
    Was a large or small proportion of the work used? Was it the significant or central part of the work?
  4. Effect on market.
    How will the use affect the author's or publisher's ability to sell the work?

Determining Fair Use

Historically, fair use litigation reveals two key questions that are most often used in determining fair use:

  1. Did the unlicensed use transform the copyrighted material by using it for a purpose significantly different than the original? 
  2. Was the material used appropriate in form and quantity, considering the nature and size of the copyrighted work as a whole and its intended purpose?

Another consideration in determining fair use is whether the user acted reasonably and in good faith in light of best practices in his or her particular field. Being aware of and adhering to best practices concerning fair use help prove that authors or creators were thoughtful in their decision and were acting in good faith when using copyrighted material. Using and retaining a "fair use checklist" is another great way to demonstrate the intent and consideration of the author or creator. Finally, proper attribution should always be provided when using copyrighted material. 

 

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