What Is Fair Use?

The fair use doctrine is an exception to the rule that no one can use another author or artist’s work without prior permission. Since fair use means that one can copy such copyrighted material, there must be a reason to do so. If done for a limited and transformative purpose, then this would be fair use. Limited use is rather straightforward. The material is being copied for, generally, a one-time use and cannot be copied for use on an ongoing or continuous basis. The term “transformative” means ambiguous. A “limited and transformative purpose” can include to comment on, criticize, or parody the copyrighted work. Therefore, if legal proceedings are being brought against you for copyright infringement, the fair use doctrine is a defense that can be used if you can prove that it was done for both a limited and transformative purpose.

The Four Factors

While the fair use of a copyrighted work is not an infringement, there are in fact limitations on such fair use. The general four factors that are considered in a copyright infringement case include:

  1. The purpose of the use, including whether it is being used for commercial or educational purposes
  2. The nature of the copyrighted work
  3. The amount copied
  4. The effect of the use or value of the copyrighted work

Purpose and Character of Use

If your intent is to profit from the use of the material, then the purpose of such use weighs against its fair use. Since the copyright protects the material, you cannot profit from its use.

Type of Material Being Copied

Copyright protects materials that have some degree of creativity. However, if the material is created by a machine, i.e., a graph created in an excel spreadsheet in which several formulas were used to gather the information, then this type of material is not protected by copyright since it is factual. For that reason, people can more freely copy from factual works than fictional works such as musicals, books, or songs. In addition, someone can defend against fair use by copying material from a published book rather than an unpublished one since the fair use scope is much narrower for unpublished books.

De Minimis Defense

If you are facing an infringement suit, you can claim that the amount copied was so minimal, or “de minimimis,” that the court will permit the copying of the material without conducting an analysis of fair use.

Copying Material by Mistake

If you copied material by mistake, believing that it was permissible to copy, this could in fact be a consideration under the fair use doctrine. However, it will not automatically protect you in a claim of copyright infringement.


A disclaimer is a statement that denies responsibility of the person who drafted the disclaimer. When copying otherwise copyrighted material, you can in fact include a disclaimer in the copy indicating that you are dissociating yourself from the work that you have borrowed. However, such a disclaimer may not protect you outright in a copyright infringement case. When you use the fair doctrine defense in such a legal suit, you can also indicate that the disclaimer was used, which can weigh more heavily in your defense.

Several copies (not more than one per student) can be made for strict classroom use so long as the copying meets the tests of spontaneity and brevity, the copying meets the cumulative effect test, and every copy has a notice of copyright.

  • Poetry: A poem can be copied if: [1] it is less than 250 words and is printed on two pages or less or [2] the poem is more than 250 words, but you can only take an excerpt of 250 words.
  • Prose: An article, story, or essay can be copied so long as: [1] it is less than 2,500 words or [2] is an extract of 1,000 words or less or 10 percent of the work, whichever is less.
  • Illustration: Only one chart, diagram, drawing, or picture from a book can be copied.
  • Special works: This consists of poetry or prose, which combine wording with illustrations and drawings. This can be copied so long as it is no more than two published pages, which cannot contain more than 10 percent of the text in its entirety. 

Other requirements include:

  • The copying must be done at the inspiration of the teacher and no one else.
  • The copying must also be to further benefit the students.
  • The copying of the material must be so close to the time of request that it would be impossible to receive the author’s request for copying.
  • The material being copied is only for school use and no outside use.
  • The teacher cannot copy material more than nine times during the school term for the same group of students.

The Future of Fair Use: Educational Institutions

The future of fair use is unknown. There seems to be a progressive trend in higher education to learn and utilize fair use more so than in the past. With such use comes the idea of expanding the fair use doctrine and the factors being considered in order to determine whether or not the copying was in fact fair use. There is, however, other legislation that helps assist educational institutions in determining whether or not copying of the material is in fact fair use.

  • The TEACH Act and Digital Millennium Copyright Act (DMCA). This Act provides restrictions and privileges in the use of copyright protected material.
  • The Consortium for Educational Technology in University Systems (CETUS). This Act states that the TEACH Act and Digital Millenium Copyright Act is an Act that should in fact be used by all higher educational facilities.

If an educational institution, or any person or business copying material for that matter, wishes to utilize a checklist in determining if the copies constitute fair use, there is something called a Fair Use Checklist that can help everyone determine whether the material being copied falls within the boundaries of fair use under U.S. copyright law, Section 107 of the U.S. Copyright Act.

Guidelines for Educational Music Copying

Generally, educational institutions will use musical works as a form of education for students, particularly for schools with bands and choirs. But if using the music to perform, you’ll want to ensure that you’re using such copyrighted works fairly and not bordering on the line of infringement. You can copy music and claim fair use in the following circumstances:

  • If you are copying material in an emergency situation due to the fact that the purchased copies are otherwise unavailable, then this is fair use. However, the purchased copies must be replaced in a timely manner.
  • For academic purposes other than performance, multiple music copies can be made so long as no more than 10 percent of the whole work is copied. Further, whole sections cannot be copied, those of which would constitute a performable unit.
  • If you wish to make one copy of an entire performable unit (a full section of a song, i.e., the bridge or verse), you can do so only if: [1] you confirm with the copyright proprietor that the music piece is out of print or [2] the musical piece is unavailable except in a larger work.
  • Printed copies that have been purchased can be edited so long as the creativity of the song is not altered and the lyrics are not changed too greatly.
  • A single copy of music recordings can be made by students for rehearsal purposes and must be retained by the educational institution or teacher.
  • A single copy of a sound recording or copyrighted music can be made from such sound recordings. It must be kept with the educational institution or teacher.

You cannot, however, copy the music for any one of the following reasons:

  • Copying to create or replace collective works
  • Copying from works that are intended to be “consumable” in the course of study
  • Copying for the purpose of performing
  • Copying without inclusion of the copyright notice that appears on the printed copy

Copying For Other Purposes

It is important to keep in mind that the use of copyright material will weigh more heavily in different areas. However, the same rules of the fair use doctrine apply in all circumstances. But there are types of copying that are always protected by the fair use doctrine, including the following:

  • Make copies or phone records of copyrighted material, but altering such material so that a blind person can utilize it.
  • If the copyright work itself contains inaccurate or derogatory information regarding a person or business, the injured party can in fact copy the material for the purpose of legal proceedings or any other purpose deemed appropriate in order to better understand why such information was written.
  • Library photocopying is protected by the fair use doctrine.

If you need help determining whether or not you can apply the fair use defense, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.