Skip to main content

Copyright & Fair Use

"Fair Use" is intended to balance an author's right to exploit their works commercially (or privately) and the public's right to engage with new factual information and ideas. Fair use provisions give the public a conditional right to reproduce copyrighted materials without first seeking permission if their usage follows specific guidelines  (i.e., four factors outlined below).

If they believe their rights have been violated by "fair use" claims, copyright holders can seek legal remedies. However, no definitive legal findings (precedent) indicate when a particular usage will be judged "fair." Whenever using copyright material, it is practical to consider how you might justify that usage in a court of law.

We should not adopt a bright-line standard unless it were a good one - and we do not  have a good one. - Judge Pierre N. Leval

Lastly, requesting permission from a copyright holder is always recommended, especially if your fair use case is weak. Significantly, even if your request is denied, your ability to claim fair use rights on that specific work is not necessarily diminished.

FOUR FACTORS (Copyright Act of 1976 - Section 107)

When balancing the scales between an author's copyright and the public's fair use rights, four factors (i.e., weights) are employed. All four weights must be considered when judging on which side the scale will tip. It is unnecessary to "win" on all factors for a fair use claim to hold merit (Simpson & Wolfe 2021).

All [the factors] are to be explored, and the results weighed together, in light of the  purposes of copyright. - Justice David Souter

Factor 1: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

Factor 1 applies only to materials used in teaching or research. Portions of copyrighted works can be discussed, critiqued, or annotated as part of learning activities; however, using copyright materials for their original purpose would not be acceptable public. (Simpson & Wolfe 2021)

According to courts' interpretation, educators must transform the nature/usage of copyrighted materials from their original purpose. A work is transformative if, in the words of the Supreme Court, it "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” (Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569)


It would be permissible to screen scenes from the God Father to discuss the director's use of sound and light in a film course. However, watching the movie during class as entertainment or for simple artist appreciation (without criticism or commentary) would not be fair use.

Beyond profit, the film's original purpose was entertainment and artistic expression; as such, it cannot be used for the purpose, even in a classroom.

Factor 2: The nature of the copyrighted work (Factual v. Creative & Published v. Unpublished)

Facts cannot receive copyright protection; however, the author’s selection, arrangement, and expression of these facts are protected. Conversely, creative works (films, novels, poems) are fully protected. As described in Factor 1, using portions of creative works require transforming the content’s intended use.

Thus far, we have discussed making “fair use” of  published works; however,  unpublished materials are almost entirely protected. Courts never support fair use claims on unpublished works as the creator does not (did not) wish for the work to be displayed before the public. (Simpson & Wolfe 2021)


When discussing censorship in high school education, it would be natural to share minor “Catcher in the Rye sections.” On the other hand, providing portions of J. D. Salinger’s unpublished letters to support a discussion of PTSD would not be considered fair use.

In short, transforming short pieces of creative works (Catcher in the Rye) for classroom work is fine, but it is never a good idea to make a fair use claim on unpublished works.

Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Factor 3 speaks to the size and significance of the portion reproduced, and unfortunately, there are no sure-fire rules to follow. Only use what is needed to meet your instructional/research goal. The less you use, the better, so if you are using/reproducing most of a work, you are probably using too much. 


Reproducing a short passage of Dickens's Bleak House to discuss social conventions in the Victorian Era would be legitimate, only representing a small % of the entire work. However, using an entirety of a three-line haiku (100%), even if it is short, would not be legitimate without publisher permission.


Lastly, courts pay special attention to the "essence of the work." Even if you are only using a tiny portion of a work, if that portion summarizes the work's central message, its use is not "fair." (Simpson & Wolfe 2021)


Harper Collins successfully sued The Nation magazine for including an excerpt of Gerald Ford's forthcoming memoir in a news article. Despite only publishing a 300-word segment, the Nation violated Factor 3 by printing the "essence" of the work (i.e., Ford's rationale for pardoning Nixon).

Factor 4: The effect of the use upon the potential market for or value of the copyrighted work 

Copyright holders have the right to profit from the publication of their works. As with factor 1, it is crucial to consider the purpose of the creator's copyright. If a publisher expects to make money from an expensive textbook, providing free portions to students would be a direct infringement on the publisher's right, negatively affecting the market value of their product. As such, making a fair use case on materials intended for an education market is extremely risky.

The easiest way to use education-focused publisher materials is to require students to purchase a license and/or buy a textbook .

Lastly, a claim of fair use will be harmed if money changes hands (even if no profit is made).


If you place a copyrighted graphic on the cover of a course reader and charge students only for the cost of copying, this use of the copyright materials would still be considered commercial as it hurts the artist's ability to profit from the graphic.


Let’s face it. It’s easier to share digitized media (e.g., images, text, audio, video) than analog media (e.g., paintings, journals, records, filmstrips).

The 2003 Teach Act enacted specific guidelines that allow the fair use of digital media in classrooms (i.e., any classrooms with web support). However, these guidelines are primarily focused on protecting copyright holders from digital piracy in schools. 

The Teach Act in no way  supplants the four fair use guidelines. When using digital media, educators need to consider how that might justify its current use and protect these assets from abuse.  

Digital Fair Use Guidelines 

  1. All used media must have a direct connection to the current curriculum.
    1. Transform any media you use from its originally intended use and ensure that its use is directly related to your curriculum (factor 1).
    2. Never providing complete copies of digital works. Only provide the portion relevant to the activity in question (factor 3).


Instructors often provide students with a variety of resources to help them learn more about the subject based on their own interests or needs. Unfortunately, the Teach Act only protects educators who share materials directly connected to a class’s learning activities. As conceived, the Teach Act statute only protects traditional “direct” instruction methodologies.

  1. Only officially registered students can have access to view copyrighted materials
    Digital content must be hosted on a secure password-protected server, never on open websites. Access to these materials must end after the course is complete.

Tip: Educators & Institutions are only required to secure content hosted on their servers. Linking to content (e.g., images, articles, and videos) on other servers (e.g., circumvents this requirement.

  1. Where possible, copyrighted materials should be formatted/encrypted to hamper duplication.
    Examples: Stream video clips, rather than making videos available for download. Set files to open in the browser rather than allowing them to download automatically.
  1. Educational Institutions are ultimate responsible for ensuring the security of copyrighted materials
    1. Administrators must regularly train faculty and staff in the institution's copyright policies. Additionally, they are responsible for ensuring that only correctly enrolled learners can access digital classrooms.
    2. IT staff are required to hamper the duplication of materials and limit learner access to materials after each class term. IT staff may store content between the class runs if steps are taken to secure the archive.
    3. Faculty & Course Developers must follow fair use guidelines as outlined above. Further, it is the instructor’s responsibility to understand the restrictions accompanying publisher-provided materials. Interfacing with your school's library can be very helpful in this regard.


Books & Articles

  1. Aufderheide, & Jaszi, P. (2011). Reclaiming fair use: how to put balance back in copyright. The University of Chicago Press.
  2. (2010). Copyright clarity how fair use supports digital learning. Corwin.
  3. (2018). The Routledge companion to media education, copyright, and fair use. Routledge.
  4. (1990). Commentaries: Toward a Fair Use Standard, The Harvard Law Review
  5. * Simpson, & Wolf, S. E. (2021). Copyright for schools: a practical guide (Sixth edition.). Libraries Unlimited.
    * This source is highly recommended

Web Sources

  1. UCSD Copyright & Library Policies:
  2. UCOP Universitywide Copyright Policies & Guidance:
  3. ALA Fair Use Evaluator:
  4. University of Rhode Island - Fair Use and Copyright for Online Education:
  5. Columbia University Libraries - Fair Use Checklist:

[jump to top  ]

← Equity & Inclusion | PREVIOUS