What are the three 3 factors to consider in deciding whether a use of copyrighted material is a fair use?

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  Index last updated May 2021

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.  Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

• Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:  Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.  This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.  Additionally, “transformative” uses are more likely to be considered fair.  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.
• Nature of the copyrighted work:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
• Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
• Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.  

Please note that the Copyright Office is unable to provide specific legal advice to individual members of the public about questions of fair use.  See 37 C.F.R. 201.2(a)(3). 

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances without permission from the author or owner.  Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.

To determine whether a specific use under one of these categories is "fair," courts are required to consider the following factors:

1. the purpose and character of the use
   • including whether such use is of a commercial nature or is for nonprofit educational purposes
2. the nature of the copyrighted work
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole
   • is it long or short in length, that is, are you copying the entire work, as you might with an image, or just part as you might with a long novel
4. the effect of the use upon the potential market for or value of the copyrighted work.

Remember that without the fair use doctrine, all copying of any amount for any purpose would be a violation of copyright.  It is not the only exception to the exclusive rights of copyright, but it is the most significant.   And it is of critical importance in the work of teaching and learning, and creating new knowledge.

Fair use is also intentionally -- and often frustratingly -- vague.  It does not contain quantitative limits or absolutes, but rather a sliding scale of four considerations.  It is up to the user to consider these four factors and decide if they believe the use they are contemplating is a legitimate one.   In many ways, it would be significantly easier if there were a definite measure, but the law's non-specificity also allows for discretion depending on how you are using the material.  No one factor is deciding and this is a good thing overall! 

Remember also that you can always ask the copyright holder for permission to use their work.  If you have their permission, you do not need to worry about making a Fair Use assessment.  You'll find some guidance at Obtaining Permission from Copyright Holder.

Additional resources: Measuring Fair Use: The Four Factors (Stanford University)

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