Fair Use Test
Copyright owners enjoy certain exclusive rights. Only they may copy their works, prepare derivatives or revisions, distribute their works, and perform them in public. The purpose of granting creators these rights is to “. . . Promote the Progress of Science and the useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” (U.S. Constitution, Article I, Section 8.)
Although creators’ rights are absolute, and apply for a fixed period of time, the law also incorporates an exception to those rights, otherwise known as fair use, which allows the public to make limited use of protected works without the need for permission or paying a fee. Before proceeding with this test, make sure that the work you are considering is protected and not in the public domain.
For fair use to apply to a particular work, four factors must be considered. Each factor tips either in favor of fair use or against it. After considering all four factors, a majority of factors leaning toward fair use will theoretically resolve the issue in favor of fair use. Using the language of the federal statue (17 U.S.C. Section 107) the factors to be considered in each instance of fair use are:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,
- The nature of the copyrighted work,
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and,
- The effect upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Factor 1: If the purpose of using a protected work is educational, both learning and teaching, then the door for fair use is opened, but education by itself does not guarantee fair use. The distinction in this factor must be between what truly furthers education and what merely entertains.
Factor 2: This factor requires considering the amount of creativity invested in the original work that you want to copy. Works that provide data or factual information weigh more in favor of fair use. Copyright law more zealously protects works that are artistic or creative in nature than factual nonfiction data.
Factor 3: Copying an entire work may make this factor weigh against fair use, but not rule it out conclusively. The less you copy, the more likely you qualify for fair use. Copying what is essentially the “heart” of a work is tantamount to copying the entire work. For example, it might be considered as using the heart of a work to copy a graph showing the correlation of the affects of two drugs on the human nervous system for a pharmacy class. In such cases, it is important to remember that if this factor tips largely against fair use, then the other three factors should tip largely in favor of fair use to offset this one’s negative value.
Factor 4: This is the most difficult factor to analyze. Will your use of a protected work diminish sales of the original, or compete with the author or publisher of the original? If he answer to this question is yes, then this factor tips against fair use.