The fair use clause of Title 17 of the United States Code is one of the most widely misunderstood provisions of U.S. copyright law. It is intended as an exemption from and limitation of copyright law, to permit use of a protected work for certain purposes. Fair use is regulated by Title 17 section 107, which contains an example list of purposes for which fair use can be claimed, including:

  • criticism
  • commentary
  • news reporting
  • teaching
  • research
  • scholarship
  • other non-commercial uses

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However, to abide by the copyright guidelines established by the law, you always need to ask the following questions:

Why Is the Work Being Used and What Is the Nature of the Work?

The purpose of using a copyrighted work needs to fall within the intended purposes listed above. The use should be transformative, rather than derivative; this simply means that the purpose of the new work should be different than that of the protected work. The nature of the work is a factor as well. For example, Josiah Thompson’s 1966 use of stills from the copyrighted recording of President John F. Kennedy’s assassination was found to be fair and in compliance with the copyright guidelines of the fair use doctrine, due to the nature of the recording, its importance to the public and Thompson’s publication on the assassination.

How Much and What Part of the Work Is Used? What Is the Impact on the Work’s Value?

The Josiah Thompson case also exemplifies another important factor: the amount and substantiality of the portion of the work used. In order to be able to claim fair use, the rule of thumb is that the smaller the portion is, the more likely the use is to be fair. However, you also need to consider substantiality. For example, quoting a portion of a book that is essentially its core can be interpreted as substantial and, therefore, infringing rather than fair; although there are exceptions. For example, entire books may be read aloud in a classroom setting for educational use. Finally, the use of a portion of a work should not significantly impact the market value of the copyrighted work.

 

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