Guide to Law of Copyright “Fair Use” in the United States

When someone creates a work, such as a book, they generally own the copyright rights to that book. This means the author can generally prevent others from copying the book without the author’s consent. BUT even without the author’s permission, others can in fact use some or all of the book for, based on the concept of “fair use.”

Be sure to check out our full Guide to Copyright Law.

What does “fair use” of a work mean?

While you usually can prevent others from using your work, there are some exceptions when the work is used in certain ways, called “fair use.”

Others can legally use your material for criticism, parody, comment, news reporting, educational (such as teaching a class), or research, subject to four factors:

1. Portion of work used, and whether it goes to the heart of the work. If you use a substantial amount of the work, but you make significant changes to it so that it becomes a completely different thing, this is considered “transformative,” and could be fair use. However, if you do not change it enough, this may be instead considered an illegal “derivative” of the work.
2. Nature of work, e.g. photo, audio; artistic works less likely to be fair use as opposed to factual works;
3. Nature of use (for profit vs not for profit). Using a work without intending to profit is more likely to be fair use; but parody is considered fair use, even when it’s for the purpose of profiting; AND
4. Effect on potential market and other actors; “is this a substitute for the work?”

What are some examples of “fair use”?

Examples of fair use

• Mashup book using Dr. Seuss & Star Trek
• Google books
• Google transformative use of Oracle’s Java API (yes, all 11,000 lines of code) to create Android platform

Examples of NOT fair use (and thus likely copyright infringement)

• Fan fiction film “Axanar” based on Star Trek
• Using attorney brief/ work product (New Egg case)
• Creating stylized art using a photograph of a person without the photographer’s permission (The specific case involved Andy Warhol’s use of a photo of the musician Prince)

Is it illegal copyright infringement to use a photograph someone else took and stylize it?

In the Andy Warhol case, where he used a photo of the musician Prince, taken by another photographer, and colorized it and stylized it, the Supreme Court said this illegally infringed on the copyright of the photographer. Although the Warhol Foundation claimed it was fair use, as it was transformative of the original photograph, the Court said it was NOT transformative, and thus not fair use.

How many seconds or minutes of a song or movie can I legally use? How many notes of a song can I use?

There is no specific length of time of a song or movie that is always considered non-infringing or “fair use.” As discussed above, it’s more a matter of whether the “sample” or “clip” is recognizable or distinctive or goes to the heart of the work.

If a teacher purchases a text for a class, is it OK to copy it or make it available digitally for students?

It may be considered fair use to use a small portion of a copyrighted text for a class. However, copying and distributing an entire text (whether the text was purchased or not) is most likely copyright infringement. Students who participate and utilize the materials may also be infringing on the copyright, but it is unlikely to be enforced against the students.

Further Resources

For assistance with fair use issues, talk to an intellectual property lawyer.

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