Fair Use

Certain uses of copyrighted material may not require the copyright owner’s permission. In the United States, this concept is known as fair use. Some other countries have a similar concept known as fair dealing.

Whether or not a certain use of copyrighted material constitutes a fair use is ultimately determined by a court of law. Courts analyze fair use arguments by looking at four factors:

The purpose and character of the use.

  • How is the original work being used, and is the new use commercial? Transformative uses add something to the original work: commentary, criticism, educational explanation or additional context are a few examples. Transformative, non-commercial uses are more likely to be considered fair use.

The nature of the copied work.

  • What is the copied work itself? Is it factual (example: a record of a historical event) or fictional (example: a novel or Hollywood blockbuster)? Uses of factual works are more likely to be protected.

The amount and substantiality of the copied work.

  • How much of the work was copied? Short excerpts are more likely to be protected than copies of entire copyrighted works, if the use meets other factors as well.

The effect on the copied work’s value.

  • Will the copying harm the potential market for the copyrighted work by effectively creating a substitute or replacement for that work?  If so, the use is probably not fair use.

Fair use determinations are made on a case by case basis, and there is no clear formula to determine whether a use may be found to be fair. If you are unsure whether a particular use of copyrighted work might be a fair use, you may want to seek legal advice. Secular Press is unable to advise whether your use may be protected or not.

For more information on fair use: