Fair Use - Images

Fair use is an exception to the rights of copyright owners which allows you to make limited uses of copyrighted works without the owner’s consent under certain circumstances for purposes such as teaching, scholarship, research, news reporting, criticism, and commentary. Courts evaluate whether use of a copyrighted work without permission constitutes fair use by considering four factors, which you can remember by the acronym P.A.I.N.:

1. P = the purpose and character of the use, including whether the use is commercial or noncommercial (noncommercial uses will generally weigh in favor of fair use; commercial uses will typically weigh against fair use). Courts also favor “transformative” uses. A transformative use may occur when you alter or transform the work into something new or when you use the work in a new manner or context, distinct from the intended use of the original.

   If you’re simply repackaging or republishing the original images in the context of your project, that’s not transformative. On the other hand, if you’re using the image(s) to create a new aesthetic, new insights and understanding, or adding value to the original image(s), that may be transformative.
   

2. A = the amount and substantiality of the portion used in relation to the copyrighted work as a whole (shorter excerpts are more likely to fall within fair use than longer excerpts; however, even a short excerpt may weigh against fair use if it is the “heart” of the work (the most important/most interesting part of the work)). If you’re using a full image, that would be copying all of a work, which would lean strongly against fair use on the amount factor. However, courts have found some flexibility on the amount factor by reasoning that copies of full images that are “thumbnail” size or are of low resolution may still fall within fair use. In these instances, the copying may be quantitatively large but qualitatively limited – low resolution or thumbnail images are unlikely to compete with the full-size originals.
   
3. I = the impact of the use upon the potential market for or value of the copyrighted work (basically, you want to ask whether your use is replacing a sale or license of the work or harming the market for the work, which would weigh against fair use).
   
4. N = the nature of the copyrighted work (if it’s more creative like fiction, art, photography, poetry, etc., this factor will weigh against fair use, if it’s more factual or informational, this factor will weigh in favor of fair use).
   

Fair use requires a case-by-case analysis and, unfortunately, there are no bright-line rules. You need to evaluate and apply the four factors to each use of a copyrighted work, but you don’t necessarily have to satisfy all of them for your use to be fair. We recommend using the BYU Fair Use Evaluation Log (FUEL) to assist you in your fair use analysis. This fair use checklist is also a helpful tool for thinking through the factors and documenting your reasoning. You might also find these summaries of fair use cases involving images helpful: