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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:
The purpose and character of a use
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
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):
Does the copyrighted material help me make my new point?
Will it help my readers or viewers get my point?
Have I used no more than is needed to make my point? (Is it “just right”?)
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 collection of detailed analyses and best practices for specific fair use scenarios for: Academic & Research Libraries, Documentary Filmmakers, Online Video, Poetry, OpenCourseware, Media Literacy Education, Scholarly Research in Communication, Dance-related Materials, Media Studies Publishing, Teaching for Film & Media Educators, and Orphan Works Collections in Libraries, Archives, and other Memory Institutions.
Fair use is an important right that provides balance to the copyright system and supports the constitutional purpose of copyright to "promote the Progress of Science and the useful Arts." The Fair Use Fundamentals infographic explains what fair use is, why it is important, who uses fair use, and provides some examples of fair use.
Where copyright law might otherwise act to prevent people from accessing knowledge, fair use permits everyone to use existing cultural and scientific material without permission, under certain circumstances. This fair use right promotes innovation, creativity, and scholarship, ultimately allowing new knowledge to be created and shared.
Fair Use in the Courts
Fair Use in the United States is largely determined by an existing body of case law (previous judicial opinions on similar subjects), and so the best way to understand fair use is often to look at previous fair use cases. As fair use is analyzed in court, the existing body of case law gets larger, and it gets easier for both users and creators to understand the limits of fair use. The resources below are a great way to get introduced to the history of fair use case law and begin to follow current developments in case law!
Fair use is a longstanding and vital aspect of American copyright law. The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).
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