Fair Use of Copyrighted Materials

The following webpage has been developed with the intention of covering in-class use of copyrighted works - not web-based courses.

Introduction | Determining if a Work is Protected | Determining Fair Use | Guidelines for Classroom Copying of Books and Periodicals | Links to Further Resources | Contact

Introduction

It is common for both students and faculty to ask whether their conduct violates copyright law. It is also common for the answer to be, "it depends." While some institutions may have good "rules of thumb" to guide their conduct, the answer lies in an inquiry into the facts of each instance of copying to determine whether or not the copying is protected by the concept of "fair use."

Fair use is not a static concept, but a basic definition is found at 17 U.S.C. § 107 of the United States Copyright Act. Fair use is a defense to copyright infringement intended to create a balance between the rights of copyright holders and the public. Copyright holders have a legitimate expectation to protect their work from unauthorized copying, but the public also has a legitimate expectation of using copyrighted works for certain purposes without paying for the use.

Fair use allows the public to discuss works and conduct academic analyses, makes satire and parody possible, and frees up new artists by letting them build on the works of the past. But the concept of fair use predates the Internet and the modern world of mass consumerism. Today it is possible for anyone to easily photocopy, scan, email, cut, copy, and paste. This has understandably led to a situation where the law is not altogether clear, and explains why the answer to most fair use questions is the unsatisfying but true, "it depends."

Determining if a Work is Protected

Before you worry about whether the material you intend to use is covered under fair use, you should first determine if the work in question is protected. Copyright does not protect or apply to:

• Works in the public domain
• Works lacking originality
• Works created by the US Government
• Facts

Be aware that works do not require a copyright notice in order to be protected.

Determining Fair Use

Section 107 of the U.S. Copyright Act lists four factors courts look at in determining whether a use is fair, and thus a defense to copyright infringement. It is important to note that these four factors are not exclusive. That is to say, courts are free to look at other factors beyond these four, and no single factor will be decisive for the outcome. The four statutory factors are:

1. The purpose and character of the use
2. The nature of the copyrighted work (being copied)
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for or value of the copyrighted work

1. The purpose and character of the use

The most important issue in analyzing purpose and character of use is whether the use is commercial in nature. Typically, courts are more lenient towards uses which are not commercial. Courts also favor uses which are highly transformative and productive.

An example of a productive use would be photocopying an academic article as part of research for your own article or thesis. An example of a transformative use would be parody. Typically, if you are parodying a copyrighted work, a court is more likely to find fair use the funnier it is, although it is hard to know what will make a judge laugh.

More generally, if the purpose and character of the use is in the public interest, this factor will weigh in favor of fair use. This factor is the user's chance to justify why they had to copy from the work in order to advance their goals.

2. The nature of the copyrighted work (being copied)

Courts do not discuss this factor with great depth, but the general rule is that the more creative the work, the less likely a court will find the use fair. For example, copying from a work of fiction is less likely fair use than copying from a non-fictional historical work. This may not mean much since raw facts are not copyrightable per se. Nonetheless, you are safer when using non-fiction than fiction in your work.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

This factor is rather malleable. The essential question is whether the amount of copying done was necessary to achieve your goal. It may be necessary to copy an entire newspaper article in order to discuss it in class, and it is necessary to copy an entire melody in order to make a parody of a song. But copying an entire thesis for a class discussion seems unnecessary.

To be safe, only copy what is necessary to achieve your goals.

4. The effect of the use upon the potential market for or value of the copyrighted work

This factor is the most important by far. If your use directly affects the profitability or value of the work you are copying from, this factor will weigh heavily against fair use. This explains why the RIAA and MPAA are so concerned about P2P technologies because they see each downloaded file as a lost sale and lost profit.

This factor is linked to the first factor, because if the purpose of your use is to make money, you are likely affecting the profitability or value of the work you are copying from, although that is not necessarily so.

Guidelines for Classroom Copying of Books and Periodicals

The guidelines reprinted below are an adaptation of the actual copying guidelines agreed to by the Association of American Publishers and The Author's League of America with minor editorial changes. Please also see the definitions and prohibitions of these guidelines.

1. Single Copying for Teachers
   A single copy may be made of any of the following or any part thereof by or for any faculty or staff member at his or her individual request:
   • A chapter from a book
   • An article from a periodical or newspaper
   • A short story, short essay or short poem, whether or not from a collective work
   • A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper
2. Multiple Copies for Classroom Use:
   Multiple copies (not to exceed in any event more than one copy per student in a course) may be made by or for the faculty giving the course for classroom use or discussion, provided that:
   • The copying meets the following tests of brevity and spontaneity as defined below
   • Meets the cumulative effect test as defined below
   • Each copy includes a notice of copyright

Definitions

Brevity

• Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.
• Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.
  
  (Each of the numerical limits stated in the above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)
  
  
• Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue
• "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Prose guidelines above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

Spontaneity

• The copying is at the instance and inspiration of the individual teacher
• The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission

Cumulative Effect

• The copying of the material is for only one course in the school in which the copies are made
• Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term
• There shall not be more than nine instances of such multiple copying for one course during one class term

(The limitations stated above (under cumulative effect) shall not apply to current news periodicals and newspapers and current news sections of other periodicals.)

Prohibitions

• Copying may not be used to create or to replace or substitute for anthologies, compilations or collective works. A prohibited replacement or substitution occurs regardless of whether copies of various works or excerpts they are from are accumulated or are reproduced and used separately.
• There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
• Copying shall not:
  • Substitute for the purchase of books, publisher's reprints or periodicals
  • Be directed by higher authority; or
  • Be repeated with respect to the same item by the same teacher from term to term
  • No charge may be made to the student beyond the actual cost of the photocopying

Links to Further Resources

• Copyright Crash Course (U Texas) - A thorough introduction to various aspects of copyright that extends to images, video, etc.
• Copyright Management Center (Indiana University/Purdue) - This website provides access to a wide variety of resources about copyright in general and its importance to higher education.
• LibraryLaw.com - This site focuses on legal issues of interest to libraries, such as copyright, privacy and the First Amendment.
• US Copyright Office Official government website - You will find all key publications, including informational circulars; application forms for copyright registration; links to the copyright law and to the homepages of other copyright-related organizations here.
• Electronic Frontier Foundation (EFF) - This is a donor-supported membership organization working to protect rights; to educate the press, policymakers and the general public about civil liberties issues related to technology; and to act as a defender of those liberties.
• North Carolina State Copyright Tutorial - As part of the NCSU Libraries Learning and Research Center for the Digital Age (LRCDA), the Scholarly Communication Center supports the university's research, teaching, and service mission by providing tutorials and information.

Questions about this Information?

Contact:
Richard Graham - Digital Media Librarian; Assistant Professor
Justin Firestone - Law Student, 2005 Graduate