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Copyright: Fair Use

Introduction

Fair Use is a limitation on the exclusive rights of copyright holders (discussed in section 107 of Copyright Law) to help preserve First Amendment rights of free speech and promote conversation for purposes such as "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."

When evaluating whether a use is fair, four factors are taken into consideration:

  1. The purpose and character of a use
  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.

No one factor is decisive - all four factors are considered.

Additionally, under factor 1, whether or not the use is transformative has become an important consideration for Fair Use evaluations. Here are three questions to ask yourself to help determine whether your use is transformative (from the Framework for Copyright Analysis tab):

  1. Does the copyrighted material help me make my new point?
  2. Will it help my readers or viewers get my point?
  3. Have I used no more than is needed to make my point? (Is it “just right”?)

Here are a few resources that go into Fair Use in more detail:

Calculators, Best Practices, & Guidelines

The only way to know for certain whether a use is fair is to defend a challenge in court. Fair Use is very context dependent, so only you can determine whether you believe fair use is applicable in your particular situation. However, there are a wealth of resources available to help you make an informed decision. Here are some checklists, guidelines, and best practices for a variety of situations. If you need further expertise, you can consult ASU's Office of General Counsel, or your own lawyer.

A Fair(y) Use Tale

Subject Guide

Anali Perry's picture
Anali Perry
Subjects: Copyright, Scholarly Communication, Digital Repositories, Scholarly Publishing, Impact & Metrics, Open Access and Open Education.
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