The fair use statute describes four factors that courts take into account in their analysis of fair use: the character of the use; the nature of the work used; the amount and substantiality of the part used; and the effect of the use on the market for or value of the work. Recently, the courts have tended to collapse the four fair use factors into two questions:
- Is the use you want to make of another’s work transformative — that is, does it add value to and repurpose the work for a new audience?
- Is the amount of material you want to use appropriate to achieve your transformative purpose?
The United States Copyright Office Fair Use Index states: “Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.”
If a use is not transformative, or if the amount you want to use goes beyond what you need to make your point, look more closely at the following options to make your determination:
Amount of use: A 2014 court decision (Cambridge University Press et al v. Patton et al) held that use of articles or chapters from longer works (works of 10 or more chapters total), or other small parts of shorter works or those with 9 or fewer chapters (10% or less); several charts, graphs or illustrations; small parts of works such as performances (audio, video) was likely a fair use.
Licensing options: Are licenses to use a work available on the open market? Is there an efficient and effective way to get a license that lets you do what you want to do? Contact the Merriman Bookstore for further information about licensing options through the Copyright Clearance Center. If effective and efficient licensing options are not available, the market’s failure to meet your needs to use materials supports your reliance on fair use.
See the American Library Association’s Checklist for Fair Use to help determine whether a use is fair.
Keep these points in mind when using copyrighted materials:
- Always include any copyright notice on the original
- Always include appropriate citations and attributions to the source
- Limit access to appropriate groups, such as students enrolled in a class
- Terminate access at the end of the class term