3.1 Limits on Copyright Protection

Copyright laws give creators the right to be compensated for many uses of their works and the ability to control many of those uses. However, those rights are limited in time and scope in order to ensure that the public is able to access and reuse creative works in important ways.

You’ve already learned in Lesson 1 about how copyright protection expires after a set period of time and that some things like ideas or words and simple phrases do not have copyright protection.

Imagine if copyright law gave creators the ability to completely control all uses of their works forever. How could we learn or teach about something a creator won’t give us permission to reproduce? How could we report about a historic event that was only captured on video by one person who doesn’t like what we have to say about the event? Without limits on copyright, free speech, learning, creativity, and culture would soon grind to a halt.

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3.2 Fair Use

What is fair use?

One of the most important limits on copyright protection is called “fair use.” Fair use ensures that copyrighted works are still available to reuse for socially-valuable purposes such as teaching, news reporting, parody, or critical comment. These fair uses of copyrighted materials can be made without permission from the copyright owner.

In its most general sense, a fair use is a use of copyrighted material done for a limited and “transformative” purpose such as to comment upon, criticize, or parody a copyrighted work. In practice, determining whether or not a particular re-use is “fair” involves making a judgement based on balancing the various aspects of the use that are more and less fair.

Copyright law provides four factors to consider when determining whether or not a use is fair:

1. Purpose and character of your use
   This is the only factor that deals with the proposed use—all the others deal with the work being used, the source work. Purposes that favor fair use include education, scholarship, research, and news reporting, as well as criticism and commentary more generally. Non-profit purposes also favor fair use (especially when coupled with one of the other favored purposes). Commercial or for-profit purposes weigh against fair use.
2. Nature of the copyrighted work
   One element of this factor is whether the work is published or not. It is less likely to be fair to use if the work is unpublished—which makes sense. Basically, making someone else’s work public when they chose not to is not very fair, even in the schoolyard sense. Nevertheless, it is possible for use of unpublished materials to be legally fair. Another element of this factor is whether the work is more “factual” or more “creative.” Borrowing from a factual work is more likely to be fair than borrowing from a creative work. This is related to the fact that copyright does not protect facts and data. With some types of works, this factor is relatively easy to assess: a textbook is usually more factual than a novel. For other works, it can be quite confusing: is a documentary film “factual,” or “creative,” or both?
3. Amount and substantiality of the portion taken
   Amount: A use is usually more likely to be fair if it uses a smaller amount of the source work, and usually less likely to be fair if it uses a large amount, but the amount is proportional. A quote of 250 words from a 300-word poem might be less fair than a quote of 250 words from a many-thousand-word article. Because the other factors also all come into play, sometimes you can legitimately use all of a source work and still be making a fair use. But less is always more likely to be fair.
   Substantiality: This element asks, fundamentally, whether you are using something from the “heart” of the work (less fair), or whether what you are borrowing is more peripheral (and more fair). It’s fairly easily understood in some contexts: borrowing the melodic “hook” of a song is borrowing the “heart”—even if it’s a small part of the song. In many contexts, however, it can be much less clear.
4. Effect of the use upon the potential market
   Put simply, this factor asks if the use in question is substituting for a sale the source’s owner would otherwise make—either to the person making the proposed use, or to others. Generally speaking, where markets exist or are actually developing, courts tend to favor them quite a bit. Nevertheless, it is possible for a use to be fair even when it causes market harm.

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3.3 Deciding to Rely on Fair Use

Each fair use decision requires thinking about all four of the factors and determining if, on balance, the specific use is more fair than not. Even the most knowledgeable and conscientious person making a fair use decision is really only deciding if the use is “likely to be fair” or “not likely to be fair.” The only way to get a definitive answer on whether a particular use is a fair use is to have that question resolved in federal court.

The best fair use decisions are made based on experience and familiarity with a wide variety of examples. While still building the knowledge and skills to make a full fair use analysis, you can begin to recognize some uses you feel confident qualify as fair.

Given what you’ve learned so far about fair use, consider the following examples:

• Including a short quotation from a story you’re analyzing in an assignment for a literature class.
• Using a few screen shots from movies in a presentation to demonstrate how the use of camera angles has changed over time.
• Showing a video clip from a local news broadcast to a small group of community activists doing work related to the topic of the broadcast.

You can probably see how each of these would be likely to qualify as a fair use. As a heuristic, or shortcut, for recognizing uses that are almost certainly fair, you could ask yourself the following questions:

• Is this use likely to result in fewer sales or less financial benefit to the copyright holder?
• Am I using a larger portion (or higher quality copy) of the original than I need to?
• Can I reasonably create my own version of the original that gets across the idea I need to convey without copying it completely?
• Can I reasonably find an alternative out-of-copyright or already licensed work that would allow me to accomplish the same thing?

If you can answer “no” to all these questions, you’ll probably be able to confidently rely on fair use. If you’re not sure that the answer to one of these is “no,” your use may still be fair. While you’re building experience doing a full fair use analysis, the University of Wisconsin–Madison Libraries can help you think through the details of your fair use decisions.

Contact Carrie Nelson, the Head of Scholarly Communications, with your questions or to schedule a consultation.

If you’re interested in really understanding how courts think about fair use, you can learn about some relevant court rulings. See this listing of Summaries of Fair Use Cases from Stanford University Libraries for more information.

When you’re ready to try doing a complete fair use analysis yourself, check out the Using Existing Works guide from the University of Minnesota Libraries to help you consider and balance each of the four factors of fair use.

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3.4 Sample Fair Use Case

I am writing a paper for a class and want to quote several lines from a research article as evidence for a point I’m making. (The article is protected by copyright and not associated with a Creative Commons license.) Should I be comfortable relying on fair use?

You have probably found yourself in this position at some time and included the quotation simply because you knew it was common practice and without thinking about copyright. In fact, this common practice relies on fair use.

Consider our heuristic for this example:

• Is this use likely to result in fewer sales or less financial benefit to the copyright holder?
  • It doesn’t seem like anyone who might purchase access to the original would decide not to just because they could read the excerpt I include in my paper, so: NO
• Am I using a larger portion (or higher quality copy) of the original than I need to?
  • I’ll only include what’s relevant to my point, so: NO
• Can I reasonably create my own version of the original that gets across the idea I need to convey without copying it completely?
  • Since I’m trying to demonstrate to the reader that an expert made this specific point, it wouldn’t accomplish what I need to paraphrase, so: NO
• Can I reasonably find an alternative out-of-copyright or already licensed work that would allow me to accomplish the same thing?
  • I want to explain in my paper what this expert says on this topic, so: NO

Based on this shortcut analysis, it makes sense that we’re comfortable relying on fair use in this case.

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3.5 Other Exceptions & Limits on Copyright

In addition to fair use, copyright law includes other exceptions, exemptions, and limitations in copyright. For example:

• Libraries are allowed to provide copiers and other reproduction equipment without being liable for users’ copying. Commercial copy shops, by contrast, may be liable for any infringing copies made on their machines.
• Small businesses are allowed to have radios and TVs where customers can see and hear them—under certain conditions. If not for this exception, the TVs and radios might constitute unauthorized public performances.
• Music stores are allowed to play the music they’re selling, in order to promote sales.