Fair Use

Guidelines for Education

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What is it?

Fair use is the most significant limitation on the copyright holder's exclusive rights (United States Copyright Office, 2010, para. 1). Deciding whether the use of a work is fair IS NOT a science. There are no set guidelines that are universally accepted. Instead, the individual who wants to use a copyrighted work must weigh four factors:

The purpose and character of the use:

  • Is the new work merely a copy of the original? If it is simply a copy, it is not as likely to be considered fair use.
  • Does the new work offer something above and beyond the original? Does it transform the original work in some way? If the work is altered significantly, used for another purpose, appeals to a different audience, it more likely to be considered fair use (NOLO, 2010, para. 6). Recent case law has increasingly focused on transformative use to make fair use determinations – for a discussion of this topic see Lultschik, 2010.
  • Is the use of the copyrighted work for nonprofit or educational purposes? The use of copyrighted works for nonprofit or educational purposes is more likely to be considered fair use (NOLO, 2010, para. 6).

The nature of the copyrighted work:

  • Is the copyrighted work a published or unpublished work? Unpublished works are less likely to be considered fair use.
  • Is the copyrighted work out of print? If it is, it is more likely to be considered fair use.
  • Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be considered fair use (NOLO, 2010, para. 9).

The amount and substantiality of the portion used:

  • The more you use, the less likely it will be considered fair use.
  • Does the amount you use exceed a reasonable expectation? If it approaches 50 percent of the entire work, it is not likely to be considered a fair use of the copyrighted work.
  • Is the particular portion used likely to adversely affect the author's economic gain? If you use the "heart" or "essence" of a work, it is less likely your use will be considered fair (NOLO, 2010, para. 13).

The effect of use on the potential market for the copyrighted work:

  • The more the new work differs from the original, the less likely it will be considered an infringement.
  • Does the work appeal to the same audience as the original? If the answer is yes, it will likely be considered an infringement.
  • Does the new work contain anything original? If it does, it is more likely the use of the copyrighted material will be seen as fair use (NOLO, 2010, para. 11).
Copyright, Fair Use, & Education

Do's and Don'ts

Keeping in mind the rules for instructors listed above, and that the source(s) of all materials must be cited in order to avoid plagiarism, general examples of limited portions of published materials that might be used in the classroom under fair use for a limited period of time, as discussed by the U.S.

Copyright Office (2009, p. 6), include:
• A chapter from a book (never the entire book).
• An article from a periodical or newspaper.
• A short story, essay, or poem. One work is the norm whether it comes from an individual work or an anthology.
• A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.
• Poetry
Copies of a poem of 250 words or less that exists on two pages or less or 250 words
from a longer poem.
• Prose
Copies of an article, story or essay that are 2,500 words or less or excerpts up to
1,000 words or 10 percent of the total work, whichever is less.
• Illustrations
Copies of a chart, graph, diagram, drawing, cartoon, or picture contained in a book or
periodical issue (U.S. Copyright Office, 2009, p. 6).

What Should Be Avoided?

• Making multiple copies of different works that could substitute for the purchase of books, publisher's reprints, or periodicals.
• Copying and using the same work from semester to semester.
• Copying and using the same material for several different courses at the same or different institutions.
• Copying more than nine separate times in a single semester (U.S. Copyright Office, 2009, p. 7).

When is Permission Required?

• When you intend to use the materials for commercial purposes.
• When you want to use the materials repeatedly.
• When you want to use a work in its entirety, especially when it is longer than 2,500 words

(U.S. Copyright Office, 2009, p. 7).

(Holzberg, 2005) (Holzberg, 2005)