Research Guides: DSCI 350M/LIB 350M Humanities Research Data Management: Fair Use

What is Fair Use?

Fair Use (Section 107) is a provision written into U.S. Copyright Law that strives to promote the creation of new culture by balancing the public interest in discovery and production of new works, against the rights of the creator of that work. It allows the use of copyrighted works “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” without the permission of the copyright owner. A Fair Use evaluation is conducted by the user of the work and is based on examining four factors and taking into consideration supporting common law and best practices. It is recommended that Fair Use evaluations be documented and retained by the user of the work.

Fair Use in Seven Words by the University of Virginia Libraries

The policy behind copyright law is not simply to protect the rights of those who produce content, but to “promote the progress of science and useful arts.” U.S. Const. Art. I, § 8, cl. 8. Because allowing authors to enforce their copyrights in all cases would actually hamper this end, first the courts and then Congress have adopted the fair use doctrine in order to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you.

Section 107 of the Copyright Act defines fair use as follows:

[T]he 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 purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

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.

Unfortunately, there is no clear formula that you can use to determine the boundaries of fair use. Instead, a court will weigh these four factors holistically in order to determine whether the use in question is a fair use. In order for you to assess whether your use of another’s copyrighted work will be permitted, you will need an understanding of why fair use applies, and how courts interpret each part of the test.

Making a Fair Use Judgement Call

How to make a fair use judgment call

Making a fair use judgement is more of an art than a science. It’s a balancing act performed case by case. All judgement calls must consider the 4 Factors of Fair Use.

It is important to note the following practices that could be used to help make fair use judgements:

Best practice is to always kind the original creator and ask if you can use their work
Because you work or go to school at an academic institution does not mean you can use any creative works in any way you like regardless if it is for educational or non-commercial purposes
There are myths around how much of a creative work you are allowed to use. For example: If you are using only a short duration or clip of a film, video music, and sound recording, this does not mean you are protected by fair use
It is recommended to document your fair use judgements and keep track of research materials copyright information
Linking or embedding (with attribution) YouTube videos or other videos on content streaming platforms could give you a stronger fair use argument
If you are reusing research materials that will not be publicly shared and access is controlled then this could benefit your fair use argument

The 4 Factors of Fair Use

What are they and how are they defined?

Purpose and Character of Use

This is the copyright owner’s right and ability to control the new makings of copies.

An example of this right: The permission to convert printed text or images into digital form.

Amount Used

This is the copyright holder’s right and ability to control how their creative work is made into new adaptive forms.

An example of this right: The permission to make a transcription from an interview sound recording or transforming a creative work through an editing process.

Nature of the Copyrighted Work

This is the copyright holder’s right and ability to control how their creative work is made into new adaptive forms.

An example of this right: The permission to make a transcription from an interview sound recording or transforming a creative work through an editing process.

Market Impact

This is the ability to control how a creative work is shared through the transfer to others.

An example of this right: Uploading a copyrighted feature film to YouTube or sharing a copyrighted digital image on Instagam.

Fair Use Case Law: Use it to help you make judgements

The case law listed below are examples of legal cases where fair use was challenged. Reviewing case law ca be helpful when learning how the United States legal system has made judgements about fair use. They can aid in your fair use arguments.

Case Law Examples: Yes, Fair Use

The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. Important factors: A small portion of film was taken and the purpose was informational. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F.Supp. 490 (S.D. N.Y., 1996).)

It was a fair use, not an infringement, to reproduce Grateful Dead concert posters within a book. Important factors: The Second Circuit focused on the fact that the posters were reduced to thumbnail size and reproduced within the context of a timeline. (Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).)

An author created a parody of the surfer-thriller Point Break. The court found the work to be sufficiently transformative to justify fair use of the underlying movie materials. At issue in this case was the more novel question of whether the resulting parody could itself be protected under copyright. Important factors: The Second Circuit held that if the author of the unauthorized work provides sufficient original material and is otherwise qualified under fair use rules, the resulting work will be protected under copyright. Keeling v. Hars, No. 13-694 (2d Cir. 2015).

Case Law Examples: Not Fair Use

A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin’s death. Important factors: The court felt that the portions taken were substantial and part of the “heart” of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982).)

Several individuals without church permission posted entire publications of the Church of Scientology on the Internet. Important factors: Fair use is intended to permit the borrowing of portions of a work, not complete works. (Religious Technology Center v. Lerma, 40 U.S.P.Q.2d 1569 (E.D. Va., 1996).)

A biographer paraphrased large portions of unpublished letters written by the famed author J.D. Salinger. Although people could read these letters at a university library, Salinger had never authorized their reproduction. In other words, the first time that the general public would see these letters was in their paraphrased form in the biography. Salinger successfully sued to prevent publication. Important factors: The letters were unpublished and were the “backbone” of the biography—so much so that without the letters the resulting biography was unsuccessful. In other words, the letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. (Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).)