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Fair Use: Four Factors of Fair Use

Four Factors of Fair Use

There are four factors when considering if using a copyrighted work without permission is considered “fair”. Each factor can be divided into parts that favor or do not favor fair use. According to attorney Richard Stim, who specializes in intellectual property law, the first factor (purpose and character of use) is the “primary indicator of fair use”. Specifically, the transformative nature of the new work has been much debated in US courts over the past 30 years. Read "Fair Use: What is Tranformative?" for a deeper explanation and examples.

  Factor #1 - Purpose and Character of Use

  Favoring Fair Use   Opposing Fair Use
  • comment, criticism, and news reporting
  • teaching, education, and research
  • parody (humor or satire)
  • transformative (changes the original to something with new meaning and expression)
  • commercial use
  • entertainment
  • non-transformative

  Factor #2 - Nature of Copyrighted Work

  Favoring Fair Use   Opposing Fair Use
  • factual, informational, or educational works
  • published work
  • fictional or creative work
  • unpublished work

  Factor #3 - Amount and Substantiality of Use

  Favoring Fair Use   Opposing Fair Use
  • small portion of the work (exception is use for parody)
  • large portion of the work
  • "heart" or most important part of the work

  Factor #4 - Effect on Market for the Original

  Favoring Fair Use   Opposing Fair Use
  • access restricted to small amount of users (like in a class)
  • single copy made and not shared (how hard would this be on social media?)
  • negatively effects the market demand for the original
  • negatively effects the market demand for a derivative
  • multiple copies made or shared

 

If you are considering using fair use to defend using a copyrighted work, checkout this comprehensive Fair Use Check List. This is a great site to bookmark!

Internet Culture and Fair Use

Many of the creative works that fuel Internet culture (e.g. memes, gifs, quotes, and videos) use copyrighted works. Most of these uses are shared from social media tool to social media tool without interference from the copyright holder because they typically encompass only a small part of the work (Factor #3). Also, a small portion of a work, like a still from a movie, would not hinder the market value for the original work (Factor #4). Depending on how the creative work is used, it could also be considered transformative, a work of parody or satire, or even something for comment or criticism (Factor #1).