Definition:
The Fair Use provisions of the Copyright Act of 1976 (Section 107 of the U.S. copyright law) allow certain uses of a work without prior contact with (or payment to) the copyright holder. Note that many, but not all, academic uses come under this heading.
Criteria:
Congress provided the criteria for whether Fair Use applies to one's use of a copyrighted work, and is determined by the cumulative assessment of these four factors:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
(The Transformative Factor):
- Has the material been used to help create something new or has it been merely copied verbatim into another work?
- When taking portions of copyrighted work, ask yourself the following questions:
- Has the material taken from the original work been transformed by adding new expression or meaning?
- Was value to the original work by creating new information, new understandings/ insights?
- Examples of transformative uses include:
- Criticism
- Research
- Scholarship
- Parody
- Comments
2. The nature of the copyrighted work
- Nonfiction works which are factual in nature are favored.
- Creative works such as novels, poetry, plays, art, photography, music, and movies are less favored.
- If the work is published, it will lean more towards Fair Use than if it's not.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for or value of the copyrighted work.
- Does the use of the copyrighted work deprive the copyright owner of income?
- Does the use undermine a new or potential market for the copyrighted work?
Fair Use is a complex topic, and there are few hard-and-fast rules about exactly how much of a copyrighted work can be reproduced without obtaining explicit permission. Indeed, the concept of Fair Use hinges on the idea that permission is not needed provided scholars do the following:
- Take from the copyrighted work only the minimum needed to make their point. As a rule this means no more than ten percent of a sound or video recording, only a few measures of printed music, or short excerpts from prose. Song lyrics are a special case, as commercial interests are especially protective of these.
- Transform the chosen excerpts through the addition of analytical commentary, interpretive diagrams, or other adaptive work that adds intellectual or artistic value.
- Explicitly Identify the source material in a formal citation.
(From: TriCo's Music Example Guide)
