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Copyright Basics

Copyright Overview
Exceptions
Fair Use
© Infringement Penalties
US Legal System

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Copyright Exceptions

Fair Use

Fair use is one of the exceptions in copyright which allows use of copyrighted materials without obtaining permission as long as the use can be considered fair. There is a four-factor analysis which must be applied to each use to determine whether the use is fair. Each factor is given equal weight. The goal is to achieve a balance between the rights of the copyright holder with the rights of the public. Fair use is also technologically neutral so the same analysis may be applied to any medium.

It is important that the four factors be understood and applied diligently. Should someone claim that their copyright has been infringed, the court can reduce the amount of money damages if the alleged infringer can show that they understood the fair use analysis and made a good faith determination that their use was fair.

 

     It's...

     If...

Fair use 4 factors favor fair use
More than likely fair use 3 factors favor fair use
May be fair use 2 to 2 tie. You have to assess the risk
Not fair use 1 factor favors fair use

 

 

 

 

 

 

 

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Factors for Fair Use

Evaluate the use for each factor and then make a good faith determination as to whether the use, in light of all four factors, can be considered fair use.  If it is not fair use and none of the other exceptions apply, then permission must be obtained to use the material.

 

 

First Factor: Purpose and Character

The first factor addresses the character and purpose of the use of the work. The uses under Tipping Factor when combined with any of the uses in the Favors Fair Use column strengthens the balance in favor of fair use.

Favors Fair Use Tipping Factor Favors Permission
Nonprofit Teaching Commercial
Educational Research Entertainment
Personal Scholarship For Profit
  Criticism  
  Commentary  
  News Reporting  

 

 

 

 

Second Factor: Nature of Work

The second factor looks at the creativity of the work. Creative works have more protection than factual ones, so the more creative a work is the less likely the use will be considered fair under this factor.

Fair use tends to favor published works more so than unpublished works. The rationale for this is that authors should be able to decide when to publish their work.

Favors Fair Use Favors Permission
Fact Fiction
Published Unpublished

 

 

 

 

Third Factor: Amount

The third factor looks at the amount of the work that is being used. A small amount generally weighs in favor of fair use where a large amount would weigh more in favor of requesting permission. However, there are times when the use of even a small amount of a work can be too much if it can be considered the heart of the work. There are many published guidelines by various groups with specific amounts recommended, but they can be misleading. They can provide a false sense of security. Purdue University neither recognizes nor endorses any such guidelines. There is no magic number or formula which determines an acceptable amount.

Favors Fair Use Favors Permission
Small Amount Large Amount

Amount used is not significant to work

Amount used is heart of work

 

 

 

 

Fourth Factor: Market Effect

The fourth factor takes into account how the intended use would impact the market for the work. Generally, the more restricted the use, the less impact on the market. The use of some works such as standardized tests or workbooks are very rarely found to be fair use because the works are considered consumables which are meant to be purchased.

Favors Fair Use Favors Permission
No major impact Major impact
Licensing/Permissions unavailable Licensing/Permissions available
Limited/Restricted access to work Work is made available to the world
User/Institution owns legal copy Use is repeated or long term

 

 

 

 

 

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Fair Use Analysis

If the balance weighs in favor of fair use, then the work can be used without permission. However, if the balance weighs against fair use and other exceptions do not apply, then permission must be obtained to use the work. Please be aware that all educational use is not automatically fair use. The fair use analysis must be applied to each use of a work. Fair use is technology neutral, so the analysis may be used for any medium.

 

 

First Factor

What is the purpose and character of the use?

Second Factor

What is the nature of the work to be used?

Third Factor

How much of the work will be used?

Fourth Factor

What is the effect of the use on the market for the work?

Favors Fair Use









Favors Permission






 

 

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The mission of the University Copyright Office is to educate the Purdue University community on copyright.
The information contained on the UCO site should not be considered legal advice.
Individuals should consult their own attorneys.

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