The Meaning of the Four Fair Use Factors
The purpose of the fair use provision is to allow limited use of copyrighted material without obtaining prior permission from the copyright owner. Consideration of all of the fair use factors explained below is required. However, all factors do not have to be on the favorable side to reasonably conclude that a valid fair use claim can be made.
A fair use analysis is fact driven. Each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different conclusions concerning the same set of facts.
The same fair use analysis applies to all formats and mediums, including the digital environment, and includes not only the right of reproduction but also the rights of performance, display, adaptation and distribution.
- Purpose and Character of the Use
This factor will generally weigh in favor of fair use if the proposed use is nonprofit and educational—as opposed to a commercial use. Most uses in the university environment can probably be characterized as nonprofit educational uses. But educational use alone does not automatically result in a finding of fair use, just as a commercial use is not always an infringing one. A nonprofit, educational use would likely favor a finding of fair use, but remember that the other three factors must also be considered. Additionally, with respect to the reproduction right, this factor is more likely to weigh in favor of fair use if the use is transformative rather than verbatim copying.
- Nature of the Copyrighted Work
This factor will generally weigh in favor of fair use if the work to be used is factual in nature (technical, scientific, etc.), as opposed to works involving more creative expression, such as plays, poems, fictional works, photographs, paintings, and so on. Fair use does not apply to some works such as standardized tests, workbooks, and works that are meant to be consumed. The case for fair use becomes even stronger when there are only a few ways to express the ideas or facts contained in a factual work. The line between unprotected “facts and ideas” on the one hand and protected “expression” on the other is often difficult to draw. If there is only one way or very few ways to express a fact or an idea, the expression is said to have merged into the fact/idea, and there is no copyright protection for the expression. Fair use applies to unpublished works as well as published works, but the author’s rights of first publication may be a factor weighing against fair use if a work is unpublished.
- Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
Although there are no numerical or percentage limits, the larger the amount of a work one uses, the less likely it will be fair use. This deliberate flexibility in the statute allows each situation to be judged on its specific facts and allows the doctrine to be practical in the higher education setting. This factor also takes into consideration the quality of the portion taken as well as the quantity. Sometimes, even if only a small amount is taken, this factor may weigh against fair use if the portion can be justly characterized as “the heart of the matter.” It is not difficult to see how this factor and the fourth factor, market effect, work in tandem. The more of the original, in terms of amount and substantiality, that's used, the greater the negative impact on the market for the copyrighted work.
- The Effect of the Use on the Market for or Value of the Copyrighted Work
This factor examines the anticipated effect of the use on the publisher’s market. If the proposed use is likely to become widespread and would negatively affect the market for or value of the copyrighted work, this factor would weigh against fair use. This factor is often cited as the most important of the four, although the factors all interrelate and must be evaluated in conjunction with one another.