SUNY Empire Copyright Information Website: Fair Use

What is Fair Use?

Fair Use is a flexible exemption to copyright that balances the author's need to make money with society's need for knowledge to be shared and reused.

• Not all educational uses are Fair Use.

• Not all nonprofit uses are Fair Use.
• Using small amounts of the source material is not necessarily Fair Use.
• Uses that are restricted to a small group of people are not necessarily Fair Use.

The Balance of Four Factors

Fair Use is determined by weighing four separate factors and looking at the combined outcome of all four. All four don't have to be favorable, but as a whole, they should be more favorable than not. In other words, you can flunk one factor and ace the other three, and it still might be fair use. Or you could do so-so on all four, and it could still be fair use.

1. Purpose and character of the use
   • For-profit uses are unfavorable.
     This includes something like marketing our institution.
   • Education, research and scholarship are favorable.
     This includes things like quoting someone or copying a chart or image in a research paper. It also includes multiple copies for classroom use.
   • Criticism and commentary are favorable.
     This includes reviews, satires and most things that are protected under the First Amendment as free speech. 
     • Parodies have special protection, but only if the material you borrow is used to critique and comment on itself, not on another topic. 
   • News reporting is favorable.
   • Making a single copy for personal use is favorable.
   • Making multiple copies for face-to-face classroom use (not research or homework, not online) is favorable.
2. Nature and character of the work
   • Published works are more favorable than unpublished.
     The reasoning is that the work's creator should be allowed to decide whether to withhold his or her work, or publish it himself or herself and make a profit from it.
   • Nonfiction works are more favorable than fiction, drama or art. 
     Merely taking facts from a work is more favorable than taking the facts along with their original expression.
     The reasoning is that U.S. copyright law is not concerned with the arts; it is focused on scientific and technological progress. Also, copyright law assumes that a greater amount of the author's creativity and originality go into fictional and dramatic works, so those need greater protection.
3. Amount and substantiality of the portion used
   • The judgment is not just quantitative, it's qualitative.
     If you take only a sentence or two, but that small passage is the core of the work, then it is unfavorable. On the other hand, parodies can take most of a work and only twist a few details, and still be considered fair use. Consider the other three factors. 
   • There is no safe percentage, number of pages, or length of an audio-video clip. Use the smallest amount you can.
4. Market effect
   • Anything that negatively impacts the copyright owner's ability to make a profit from the original work is unfavorable. 
   • Anything that negatively impacts the copyright owner's ability to make a profit from derivative works based on the original, even if he or she has not created those derivative works yet, and never will, is unfavorable.
   • BUT! You do not have to consider negligible or hypothetical market effects that are unlikely to affect the copyright owner's bottom line. 
     • Campbell v. Acuff-Rose Music, Inc. (1994) - “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the uses.”

Always Fair Use

A few things are always considered Fair Use:

• Transformative uses (see above.)
• You can convert a VHS movie to play on a computer for your own personal use.
• You can photocopy a journal article to take it out of the library, or print it to take it away from the computer, for your own personal use.
• You can burn a second copy of a CD that you own, or you can keep a copy of an MP3 that you own on multiple hard drives, for your own personal use.
• You can always link to a legal copy of something online. 
  • When linking to an image, you can use a tiny copy of that image (a thumbnail - usually 1 inch by 1 inch) to indicate what is behind the link. 
  • When linking to textual content, you can use its title, a brief quote, or a summary to indicate what is behind the link.
  • Embed codes (like the ones from YouTube or Slideshare) count as linking for these purposes.
• Unless it violates a license agreement, you can take screenshots to use in a review or instructions, even online. 
• You can take brief quotes or clips of something to use in criticism and commentary, even online.
• Students have broad leeway for their assignments, as long as they don't go on to put those assignments on the public internet or publish them. 
• The de minimis rule says that it's always permissible to use an incidental, accidental, or insignifcant fragment without permission:
  • if you take a picture that includes part of an artwork in the blurry background
  • if you're recording an interview for a documentary and somebody's cellphone ringtone plays a bar of a song
  • if you use the title of an article as the text to link to that article.

If a work is transformative enough, it is a Fair Use, because of the unique way it fulfills the criteria of the first and fourth factors.

A Transformative Work is not a derivative work, although it might have started out that way. But instead of being a new spin on the original, or the original with something added, taken away, or changed, a Transformative Work is something entirely new that just uses elements from the original. It repurposes, recontextualizes and/or changes the work from which it borrows.

Transformative Works pass the Fair Use first factor test (nature and character of the use) with flying colors. That is because a Transformative Work creates new ideas and knowledge, which the courts consider socially beneficial enough to fall under the Constitutional phrase, "to promote progress of science and the useful arts."

Transformative Works pass the fourth factor test (market effect) equally well. That is because a Transformative Work is something entirely new that can't serve as a market substitution for the original work.

Examples of Transformative Works that have been accepted by the courts as Fair Use:

• resizing images into thumbnails and putting them in a timeline
• inserting short clips from newscasts into a biographical documentary
• creating a searchable index of a text
• juxtaposing words or text from one source with images or video from another
• narrating over clips from movies or TV for criticism and commentary

Text materials aren't covered by Educational Use or the TEACH Act, so readings that are not linked to or used with a license will have to be used under Fair Use. 

If you can link, link. 

Whenever possible, link to content where it "lives." Linking is always a Fair Use.

• Permalinks to library materials
• Link to Open Access articles in repositories
• Link to articles in their no-paywall journal websites

Online Instruction (In the LMS)

When we talk about embedding PDFs or other text files, we always mean embedding them in a course in the LMS. None of this advice should be taken to apply to blogs, websites, email, or message boards. Unlike those, the LMS has access protections that minimize market effect, and increase the case for Fair Use. 

There is no clearly defined "safe amount." Both law and precedent indicate that copying brief passages for educational and scholarly use without permission is definitely Fair Use. It is also clear from precedent that copying multiple chapters of a book or multiple articles from a journal is definitely not Fair Use. A reasonable guideline is that within the LMS, a single article from a journal (not an issue, the whole journal) or a single chapter from a book is legitimate under both the spirit and letter of Fair Use. It would be risky to use any more than that under Fair Use, and we also understand if a course owner wishes to use less than that.

The course owner is the one who could be liable if the university receives a takedown notice, and they (the course owner) do not comply with it. Since the risk is theirs, the tradeoff between being cautious about copyright and being able to use content is theirs to make.