The Fair Use Doctrine Section 107 of the Copyright Law sets forth a statutory exemption that may allow the use of protected material in a manner that would otherwise infringe upon the copyright holder’s rights. (The copyright holder has the right to copy, distribute, adapt, display or perform the work publicly.)

The doctrine represents an effort to strike a balance between protecting the copyright holder’s interests, contributions, and incentives for future work and furthering society’s interest in allowing for reasonable use by others so as to promote the progress of knowledge. A common misconception is that “fair use” covers any use so long as the purpose is academic. This is not the case.

The characterization of a use as “fair use” depends on the result of a four-factor balancing test, with each factor tilting the scale in favor of or against a “fair use” exemption. All four factors must be weighed with respect to each use:

1. Nature of the protected work. Use of published/factual/nonfiction work is more likely to fall under the fair use umbrella than use of unpublished or highly creative work.

2. Purpose of the use. Teaching, criticism, research, etc., are more likely to be acceptable than commercial use.

3. Amount and substantiality of the work used. Use of a small quantity in relation to the whole, use of material that is not considered the heart of the work, and use of an “appropriate” amount for educational purpose will all favor a determination of fair use.

4. Effect of use on the market or potential market for the protected work. Use of only one or two copies is more likely to fall under the fair use umbrella than repeated long-term use, measures that make the material electronically accessible, or use that looks like an effort to circumvent the purchase of the copyrighted work.

If you have any questions about applying the “Fair Use” doctrine, please contact Peter Poulos at the Office of General Counsel, (216) 368-0661.