Section 107 provides that the fair use of copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether a use is fair, four factors must be considered. A fair use analysis involves balancing the four factors. If the weight of the factors leans towards "favorable to fair use," then permission is not required. If the weight of the factors leans towards "unfavorable to fair use," then the use is not likely to be considered fair use and permission from the copyright owner must be obtained.
Conducting a fair use analysis can seem difficult. Reasonable people can come to different conclusions regarding the same use. At the end of this page are a series of links to web sites with some simple fair use guidelines for specific situations faced by educators.
If after conducting a fair use analysis you think that permission is required, see the How Do I Get Permission? tab.
The Fair Use Index tracks a variety of judicial decisions to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair. The decisions span multiple federal jurisdictions, including the U.S. Supreme Court, circuit courts of appeal, and district courts. Please note that while the Index incorporates a broad selection of cases, it does not include all judicial opinions on fair use. The Copyright Office will update and expand the Index periodically.
Favorable to fair use : teaching, scholarship, research, non-profit, personal use
Unfavorable to fair use: intent is to derive commercial benefit
NOTE: Parody, criticism, commentary, news reporting, and other transformative uses are core fair uses. If combined with other uses, they add weight to make them more fair.
Favorable to fair use : factual, published
Unfavorable to fair use: imaginative, consumable materials (e.g., workbooks, answer sheets, surveys), unpublished
Little effect on balance: mixture of factual and imaginative
Favorable to be fair use: small amount relative to the entire work
Unfavorable to fair use: an entire work, more than a small amount of the "heart" of the work
NOTE: The importance of this factor varies depending on whether the proposed use is educational or commercial.
Favorable to fair use: Original is out of print or unavailable. No ready market for permissions. Reasonable attempts to obtain a copy or permission to copy have been documented.
Unfavorable to fair use: Use substitutes for purchase of the original work, or the work has been used in this course before. Avoids payment in an established permissions market.
NOTE: Courts have ruled that this factor cannot convert an otherwise fair use to an infringing use. If, after evaluation of the first 3 factors, the proposed use is favorable to fair use the analysis ends and the use is fair. On the other hand, if the proposed use is tipping toward infringement, this factor should be considered.
This chart is adapted from The Copyright Crash Course copyright 2001, 2007 Georgia K. Harper.
Additional resources on fair use:
Fair Use from the University of Texas - Fair use guidelines for using copyrighted works in coursepacks, distance learning, image archives, multimedia works, music, research copies and reserves
Fair Use at the University of Rhode Island provides practical examples of how to determine fair use.
Visual Resources Association Intellectual Property Rights Committee - includes guidelines on Academic use of images and a "digital image rights computator" to help determine the rights in a particular image