Guides @ UF: Copyright on Campus: Fair Use

In the Weeds: More on Fair Use

Fair Use - Stanford Copyright & Fair Use
From the NOLO Press book Getting Permission, overview of fair use.
Fair Use Checklist
Developed by Kenneth Crews and Dwayne Buttler, one of the first Fair Use checklists to enter the field. The checklist is a tool for helping one conduct fair use analysis but does not provide a definitive conclusion.
Fair Use of Copyrighted Materials
From the University of Texas "Crash Course on Copyright," excellent overview of fair use law.
Code of Best Practices in Fair Use for Academic and Research Libraries
From the Association of Research Libraries, a description of 8 common library practices where fair use can be successfully employed, with certain enhancements and limitations.

Hot Topics: Fair Use in Memes & GIFs

A major question that comes up in court battles that address fair use is whether or not the copyrighted material has been transformed by adding new meaning or commentary. Many of the best memes and GIFs do just this by combining film/TV stills, short video clips, or brief quotations with new, original text or other images. The end result might parody the original work or joke about some aspect of our culture. But just copying a funny photo and sharing it might not be enough to qualify as fair use; it should be obvious that you are using it in a new way.

Still in doubt? Rely on public domain or openly licensed media.

What is Fair Use

Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered "fair use."

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit, educational purposes and whether the use is transformative, that is the use is for a new audience or a new purpose.
The nature of the copyrighted work. Use of a purely factual work is more likely to be considered fair use than use of someone's creative work.
The amount and substantiality of the portion used in relation to the copyright protected work as a whole.There are no set page counts or percentages that define the boundaries of fair use. Use of an entire work can be fair use if it is necessary to carry out a very transformational purpose that has no effect upon the market for the original.
The effect of the use on the potential market for or value of the copyright protected work. This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing.

Fair Use Myths

What I am doing is educational, therefore it is fair use.

Just because your use is for a non-profit educational purpose does not automatically give you permission to copy and distribute other people's work. 'Educational purpose' is only one of the four factors relating to a fair use determination. To decide whether a use is a fair use, the effect on the market, the amount used, and the nature of the work must also be taken into consideration.

I am not making any money from the use, therefore it is fair use.

Effect on the market is only one of the four factors relating to a fair use determination. Whether or not you are making money does not matter so much as whether you are replacing the market for the item, for example if people can view your item instead of having to purchase it. To decide whether it’s a fair use, the effect on the market must be taken into consideration along with the other three factors: amount used, the purpose of the use, and the nature of the work.

If I am making money from the use, it cannot be a fair use.

Even commercial uses can be fair use. It’s all about the balance and weighing the four factors to come to a conclusion. If other factors are in favor of a fair use, it may balance the fact that you intend to make money from the use.

So long as I am not using something that is entertaining, it can be fair use.

Copyright is concerned with originality, not quality. Whether it’s high artistry or low budget B movies, anything that is an original and tangible creative expression receives copyright protection according to U.S. law.

As long as I provide proper attribution for a use, I do not need to seek permission.

Attribution is a matter of ethics and responsibility, but it has no bearing on a fair use assessment. To determine whether you have a fair use, you will need to go through the four factors assessment according to your intended use.

So long as I only use a screenshot or a still from a film it will always be fair use.

Even the smallest bit of a work including screenshots or stills can have copyright. There is still copyright in small portions of a work. You must make your own fair use assessment of the little bit you want to use. It may be a fair use to use a screenshot or still - but you still need to look at each use in light of all four factors and the overarching purpose of fair use.

I only copied 10% so it must be fair use.

There are no "bright line" rules for fair use; guidelines are not the law. A small amount could be the heart of the work and not fair use. There are no numeric rules, and that's a good thing--you'll want always to have the right to exercise judgment on what amount/which content you might need to use within your work.

If it is fair use in the classroom, then it must be fair use to use it online.

There are different facts to consider when copying materials for online use, particularly when considering use of media or other visual works online. A fair use analysis must be conducted for online use same as for classroom use.

Compiled from University of Michigan, Case Western Reserve University and the Center for Social Media at American University