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Copyright Licensing Office

Fair Use - Text

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.
  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)). Courts have repeatedly rejected the application of strict quantified measures. Courts consider the quantity (in terms of total pages and overall percentage) and quality of the amount taken.
  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, like nonfiction, 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.