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Weighing the four factors of fair use

Posted by Liz Hamilton

Happy Fair Use Week! In U.S. copyright law, fair use is a user’s right to make use of other creators’ copyrighted works for purposes like criticism and comment. Fair Use Week celebrates and promotes this right so everyone can exercise it. I’m the copyright librarian here at the Northwestern University Libraries, and this winter quarter I launched a new workshop called “Your Dissertation and Copyright: What You Need to Know”. In honor of Fair Use Week, I thought it would be useful to talk more about fair use and the questions I’ve been hearing in these sessions, which apply not just to dissertations, but all scholarly work. 

Before I get too far into this post, let me note that I’m a librarian but not a lawyer. I can provide information about the law—but not legal advice. 

Four factors need to be considered when evaluating whether a use is fair. Each of the factors have to be evaluated independently and then looked at together. I’ll talk about how to think about each of the factors and highlight how they apply for a couple of key examples: quotations, film stills, and archival material. 

The First Factor: Why?

The first factor of fair use is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” This factor looks at why you’re using someone else’s work to begin with. Criticism, comment, news reporting, teaching, scholarship, research, and parody are all purposes that favor fair use. In the case of dissertations and other scholarly work, many uses of material like quotations, film stills, and archival material will have a purpose of criticism and comment, and thus favor fair use, but there are exceptions. When choosing what material to use, focus on excerpts of work that support your argument. Uses that are simply decorative, like using a quote just because it sounds good or using an image from an archive just because it looks cool, will be less likely to have a purpose that favors fair use, and you’ll have a harder time making a case for them. Other purposes that will likely oppose fair use under the first factor are things like entertainment or commercial activity. 

Transformative use is another purpose that strongly favors fair use. This kind of use happens when a work is changed or used in a productive new way. A great example of this is the Google Books tool, which was originally created when Google scanned millions of books to create a searchable database. The search functionality, rather than simply using the scans of the books as reading material, was found to be transformative. 

The Second Factor: What?

The second factor is “the nature of the copyrighted work.” This factor looks at what work you’re using. Fair use favors works that are published or nonfiction; works of fiction, works that are highly creative, and unpublished works oppose fair use. Depending on the source material you’re citing, quotations, film stills, and archival material will vary in their natures. You may be using quotes from strongly factual scholarly articles, or from highly creative novels; you may be using film stills from a documentary or a blockbuster movie. Archival material can likewise run the gamut in terms of nature. Don’t panic. The second factor isn’t usually determinative in a fair use analysis, and the other factors still need to be considered. 

The Third Factor: How much?

The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” This factor looks at how much of someone else’s work you’re using. Traditionally, fair use favors small amounts, and opposes amounts that are larger or that are the entire work, or that contain the “heart of the work.” However, it’s also important to consider whether the amount is appropriate to the use – for example, the scanning of full volumes for the Google Books database was found to be fair use because it was necessary for the database to function.

Whether quoting textual material, using film stills, or excerpting archival material, smaller amounts are more likely to be fair use, but amounts that are appropriate to your use may also be fair. Consider the amount carefully for things like poetry, song lyrics, and dialogue from dramatic works, and other materials where a short quotation may still be a large percentage of the work. If you do find that you need to use an entire work, that may be permitted under fair use if the other factors also support the use. 

The Fourth Factor: What about the profit?

The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” This factor looks at whether you’re hindering the rights holder’s ability to profit from their work. Uses that don’t impact the market for the work or where there’s a lack of licensing mechanism for the work, or where only a small number of copies are made, are more likely to be fair use. However, uses that could replace the sale of the copyrighted work, where permission or a license is reasonably available, many copies are made, or where the use otherwise significantly impairs the market for the work or its derivatives are likely to oppose fair use. 

Uses in academic works can vary under the fourth factor. Quotations and film stills may be very likely to be fair use – almost no one would only read a quote as a substitute for the article or book it came from, or look at one static image in a scholarly work in place of watching the actual film. Archival material can be more complicated. Some material in archives may have a clear market and a contact to reach out to for permission, like a collection of photographs by a specific photographer. On the other hand, some archival material may have no clear rights holder and no clear mechanism to seek permission, making it difficult to articulate an impact on the market. 

Looking at the Four Factors Together

The last part of the process is stepping back to look at the four factors as a group. Do most or all of the factors support fair use? Does one factor weigh very heavily against fair use, and maybe tip the scales against it? Sometimes the factors will be clearer than others. Using film stills or small quotations of a work for criticism and comment may be fairly straightforward under fair use; using an entire archival work may be a much murkier proposition. Fortunately there are a variety of resources to help you think through these decisions, and the Libraries are always here to help. 

Want more information? Try one of the resource below: 

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