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Copyright, Fair Use, and Creative Commons

Montgomery Library's Guide to Copyright and Fair Use

Fair Use https://commons.wikimedia.org/wiki/File:Fair_use_logo.svg

Fair Use is a limitation on the exclusive rights of copyright holders (discussed in Section 107 of the U.S. Copyright Act) to protect the right to free speech under the First Amendment and to promote meaningful public discourse, which includes commentary, critique, news reporting, teaching, scholarship, and research.

When evaluating whether a use is fair, four factors are taken into consideration:

  1. The purpose and character of the use: nonprofit educational purposes are generally favored over commercial uses, and so-called "transformative" uses may be allowed.
  2. The nature of the copyrighted work: factors such as the genre and original context of publication are taken into consideration.
  3. The amount and/or substantiality of the portion used: the overall percentage reproduced and the contextual significance of that portion are assessed in light of the whole work.
  4. The effect of the use upon the potential market: commercial or even some educational uses could arguably impact the sales of the original work, but scholarship and research purposes generally are not seen as affecting the market.

No one factor is decisive - all four factors are considered.

Additionally, under the first factor, whether or not the use is transformative has become a consideration for Fair Use evaluations. Here are three questions to ask yourself to help determine whether your use is transformative:

  1. Does the copyrighted material help the person make a new point?
  2. Will it help the reader or viewer understand their point?
  3. Have I used no more than is necessary to make my point? (Is it just right?)

The factors work in union with each other. For example, a person may be using copyrighted material for commercial use (rather than a non-profit or educational purpose) but is using a published copyrighted work, in a small amount, and their use will have no negative effective on the copyright holder's revenue. This use can be considered as fair use.

Similarly, a non-profit educational group could use parts of a copyrighted video to show to a small group of students but charge a fee. This use would not be considered a fair use, even though the organization is a non-profit educational institution, and they are not showing the entire film.

Fair Use Best Practices & Guidelines

In the U.S. Supreme Court case Harrper & Row v. Nation Enterprises, 471 U.S. 539 (1985), the court presented a principle originally worded by Joseph McDonald, who paraphrased the Golden Rule as follows: "Take not from others to such an extent and in such a manner that you would be resentful if they so took from you." 

However, the only way to definitively know whether a use is fair is to defend a challenge in court. You can only determine whether or not you believe fair use is applicable in your specific situation. However, there are a vast number of resources available to assist you in making an informed decision. Here are some checklists, guidelines, and best practices for a number of situations.