Fair Use


What It Is

  • The fair use doctrine is contained within the United States Copyright Act (Title 17, Chapter 1, § 107).
  • Fair use balances the rights of the creators of intellectual works with the interests of society in using those works by allowing for limited use of copyrighted works without permission from the copyright holder for purposes such as criticism, commentary, news reporting, teaching, and research. 
  • The law provides a structure for determining whether a use is "fair," as detailed below.                                                                                                                 

Assessing For Fair Use

  • Fair use is evaluated based on a set of four factors.
  • When assessing whether a use qualifies, carefully consider each of these factors individually and then as a whole. 
  • No single factor is considered more important than the other.
  • One factor, or any combination of them, can change the assessment.

Fair Use Factors

1. What is the purpose and character of the new use?

  • Is the new use commercial in nature?
    • Fair use is more likely to be found in non-commercial use cases.
    • Despite being an academic publisher, use in a Sage product would be considered commercial.
  • Has the original work been sufficiently transformed?
    • Since SAGE is a commercial publisher, there must be sufficient transformation of the original work.
    • Examples of transformative use include:
      • ​​​​​​​Adding commentary, analysis, or criticism to the original work
      • Providing new insight into the original work
      • Building upon or extending the original work
      • Adding new meaning to the original work
      • Providing a different purpose or manner to the original work

2. What is the nature of the original work?

  • Does the original work contain factual information?
    • Fair use is more frequently found if the original work is factual rather than creative or artistic.
  • Has the original work been published?
    • Fair use is more frequently found if the original work is published rather than unpublished because the law supports an author's right to control the first publication of his/her work.

3. What amount and substantiality of the original work is being used?

  • Does the new work only use the portion of the original work that is necessary to make your point?
    • Fair use is more frequently found when only what is needed of the original work is used. 
  • Does the portion of the original work that is being used constitute the “heart” of the original work?
    • Even when only a small portion of the original work is used, if it is the most important portion of the work, the use is less likely to be considered fair.
  • How much of the original work was used? 
    • Use of a portion of the work, rather than the whole work, is more likely to support fair use.
    • However, there is no set amount or percentage of the original work that may be used to determine conclusively that a use qualifies as fair use.

4. Does the new work affect the potential market of the original work?

  • Would the new work serve as a substitute for the original work? 
    • ​​​​​​​Fair use is more frequently found if the new work will not compete with or negatively affect the original work in the existing or future market.

Fair Use Exceptions

  • Fair use only applies to works published in the U.S.
  • Fair use only cover's a work's copyright, it does not extend to any privacy or personal rights an individual associated with the work may have.​​​​​​​

Note: Material being published under fair use must still be properly cited within the new work.