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This guide provides a basic primer about copyright and fair use for instruction. If you have specific questions, please e-mail srbenson@illinois.edu
Disclaimer
These pages were created to provide basic copyright information and are not a substitute for legal advice.
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
A provision of the U.S. Copyright law, Section 107, that provides for the limited use or reproduction of copyrighted content without seeking permission from the rights holder.
Fair use is appropriate for teaching, research, scholarship, criticism or commentary, but it may also be used when creating a news reports, blogs, mashups, presentations, art, and music.
However, fair use is not a blatant exception, i.e., all educational purposes might not be deemed fair use, and there are some commercial projects where it can be applied.
When determining whether or a use of copyrighted content is fair, it is important to weigh the four factors.
Fair use is a section of the U.S. Copyright Act, but people are sometimes unsure of how to apply the four factors. The Columbia University Copyright Advisory Office provides a comprehensive explanation of fair use and how to apply the four factors.
Fair Use Resources
Below our the 4 factors of fair use to explore when making a fair use determination.
In addition, the College Art Association also has a Code of Best Practices in Fair Use for the Visual Arts
Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
Favoring Fair Use | Opposing Fair Use |
Teaching, Research, Scholarship |
Commercial activity |
Criticism, Comment, News Reporting |
Profiting from the use |
Transformative or productive use
(changes the work for new utility)
|
Entertainment |
Restricted access
(to students or other appropriate group)
|
Bad Faith Behavior |
Parody |
Denying credit to original author |
Nature of the copyrighted work
Favoring Fair Use | Opposing Fair Use |
Published work |
Unpublished work |
Factual or nonfiction based |
Highly creative work (art, music, novels, films, plays) |
Important to meet favored educational objectives |
Fiction |
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole
Favoring Fair Use | Opposing Fair Use |
Small Quantity |
Unpublished Work |
Portion use is not central or significant |
Portion used is central or “heart” of the work, .i.e.,
the best or most recognizable part
|
Amount is appropriate for favored educational purpose |
Effect of the use upon the potential market for or value of the copyrighted work
Favoring Fair Use | Opposing Fair Use |
User owns lawfully purchased or acquired copy of original work |
Could replace sale of copyrighted work, i.e., numerous copies made |
One or few copies made |
Significantly impairs market or potential market for copyrighted work or derivative |
No significant effect on the market or potential market for copyrighted work |
Reasonable available licensing mechanism for use of the copyrighted work |
No similar product marketed by the copyright holder |
Affordable permission available for using work |
Lack of licensing mechanism, i.e., there is no platform available to license
or provide access to the content
|
Made accessible via Web or public forum |