Copyright Guide: Fair Use

What is Fair Use?

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• Is the copyrighted work a published or unpublished work? Unpublished works are less likely to be considered fair use.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).

What are the Rules for Fair Use for Instructors?

Copying by instructors must meet tests for brevity and spontaneity:

• Brevity refers to how much of the work you can copy.
• Spontaneity refers to how many times you can copy and how much planning it would take to otherwise seek and obtain permission from a copyright holder (U.S. Copyright Office, 2009, p. 6).

According to the rule, the need to copy should occur closely in time to the need to use the copies. If you use something repeatedly, it is less likely to be considered fair use. The expectation is that you will obtain permission from the copyright holder as soon as it is feasible. Using something over a period of multiple semesters or years is not within the spirit of the fair use exception. 
In addition, there are recommendations for what the U.S. Copyright Office calls "special" works.

• "Certain works in poetry, prose, or in ‘poetic prose’ which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety" (U.S. Copyright Office, 2009, p. 6).
• Special works should never be copied in their entirety.
• An excerpt of no more than two pages or 10 percent, whichever is less, is the rule for special works (U.S. Copyright Office, 2009, p. 6).

The use of the copies should be for one course at one school. The copies should include a notice of copyright acknowledging the author of the work (U.S. Copyright Office, 2009, p. 7).
LaGrange College recommends that its faculty and instructors consider both the special guidelines for instructors and take into account the four factors that are used to evaluate fair use when they are deciding what and how much of a copyrighted work to use.

In General, What Counts as Fair Use?

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).

How Do I Get Permission? How Can the Library Help?

• The library will assist LaGrange College faculty in obtaining permission for copyright-protected materials for use in LaGrange College classes for the Reserves shelf in the library. Faculty of LaGrange College can fill out a Reserves form to request that the library obtain copyright permission and place items on reserve for your courses.
• To use materials outside of LaGrange College courses, you must obtain permission yourself. 

Copyright and Electronic Publishing

• The same copyright protections exist for the author of a work regardless of whether the work is in print, in a library research database, a blog, an online discussion board or comment space, or any social media formats.
• If you make a copy from an online source for your personal use, it is more likely to be seen as fair use. However, if you make a copy and put it online, it is less likely to be considered fair use.
• Note that the Internet IS NOT the public domain. There are both copyrighted and uncopyrighted materials online. Always assume a work online is copyrighted.

Tips for Using Online Information

• Always credit the source of your information. If you do not see an individual named as the author, do not forget that the author may in fact be the organization responsible for the Web site. Credit the organization.
• Find out if the author of a work (e.g., text, video, audio, graphic, etc.) provides information on how to use his or her work. If the author provides explicit guidelines, follow them.
• Whenever feasible, ask the copyright holder for permission. If no copyright holder is specifically named, do not assume that the material is in the public domain. Assume that the copyright holder is the author, whether it be an individual or an organization. Keep a copy of your request for permission and the permission received.