Copyright and Fair Use in the Libraries

U.S. Copyright law (Title 17 of the U.S. Code) allows you to make certain uses of copyrighted works without the need to obtain permission from the copyright owner. One of the most useful ways the law does this is through the doctrine of fair use (17 USC §107). If your use is considered a fair use, then you have not violated the owner’s copyright. Determining whether your use is a fair use involves consideration of four factors described in the copyright law:

• The purpose and character of your use. The law mentions several types of activities that are likely to be considered fair uses, including criticism, commentary, news reporting, teaching, scholarship, and research. These activities are largely beneficial to society, not just the individual making use of the copyrighted material. Generally, nonprofit and educational uses are more likely to be deemed fair than commercial uses. When you are considering this first factor, a key question to ask is whether your use is transformative. A transformative use does not simply substitute for the original work, but changes it in a way that gives your use a new character or meaning. Transformative uses are more likely to be considered fair uses than rote copying.
• The nature of the copyrighted work. Use of a factual work is more likely to be fair than use of a creative work. In addition, the law affords more protection to unpublished works than to published works.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole. For the third factor, one important guideline to remember is that you should only use as much of the copyrighted work as you need to fulfill your purpose. The smaller the amount you use, the more likely that use is going to be considered a fair use. However, even using a small amount may not be fair if the portion you are using is the “heart” of the work, or the most important part. Also note that the law does not establish bright line rules (such as “more than 10 percent is never allowed”) regarding how much of a work may be used.
• The effect of the use upon the potential market for or value of the copyrighted work. If your use would have adverse effects upon the ability of the original work to generate income for the copyright owner, that use is less likely to be a fair use. This is related to the first factor in that your new work should not be a market substitute for the original.

You must consider all of these factors when making a fair use determination. The factors often interact, and the circumstances of your use will be highly relevant in the analysis, so it is not simply a matter of making sure three factors weigh in your favor while one does not. To get a better idea of how courts decide fair use cases, please see the summaries provided by Stanford University: https://fairuse.stanford.edu/overview/fair-use/cases/. If you determine that your intended use is not a fair use, then you have a couple of options. First, you could alter your use so that it would be considered fair; this might entail using less of the copyrighted work or making your use more transformative, for example. Second, you can try to obtain permission from the copyright owner.

Please note: the University of Alabama Libraries cannot provide legal advice. If you need legal advice, please consult an attorney.

Please note: the University of Alabama Libraries cannot provide legal advice. If you need legal advice, please consult an attorney.