Fair Use and What It Means For Authors

Understanding Copyright Laws

Fair use is a limitation of copyright that allows reproduction of copyrighted works for certain purposes. Florian Hiltmair / Getty Images

"Fair use" refers to a limitation to the grant of copyright that allows reproduction of copyrighted material for certain purposes.

What Exactly Is Fair Use?

One of the rights accorded to the owner of copyright (like a book author) is the right to reproduce or to authorize others to reproduce the work, subject to certain limitations. According to the U.S. Copyright office, an important limitation is the doctrine of "fair use."

While copyright protects the work of authors — specifically, the particular way authors have expressed themselves — fair use protects those who wish to use copyrighted work that is not theirs in certain prescribed situations. Among the uses considered fair are: criticism, comment, news reporting, teaching, scholarship, research, and parody.

As FairUseWeek.org puts it, fair use supports the constitutional purpose of copyright to “promote the progress of science and the useful arts.” (Learn more about copyright.)

What Fair Use Means to Authors

As creators, authors can both want to invoke fair use of another person's copyrighted material, and having others use ours.  The right of fair use is especially important to academic authors (who excerpt material for scholarship), non-fiction authors or cultural critics (who quote or reprint for specific examples or to critique the work), and satirists (parody is considered fair use).

Fair use isn't always easy to define and the distinction between what is fair use and what is copyright infringement isn't always clear. There have been many court cases to make the determination in specific instances. However, there are some guidelines.  

The Most Important Factors in Determining Fair Use

Certain factors should be considered in determining whether or not a particular use is fair:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes. In general, non-profit trumps commercial. 
  • The nature of the copyrighted work. See the examples, below.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The "fair use" doctrine does not specify any number of words, lines, or notes that may safely be taken without permission.
  • The effect of the use upon the potential market for, or value of, the copyrighted work. The usage shouldn't diminish the value of the work for the author.

According to FairUseWeek.org, the most important factor in determining whether or not something is fair use of a work is the purpose and whether or not the use is transformative. "Courts are much more likely to uphold a use as fair use… if it adds something new, with a different character, expression, meaning or message or function."

Examples of Fair Use

According to the Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, the following are examples of activities that the courts have regarded as fair use:

  • Quotation of excerpts in a review or criticism for purposes of illustration or comment
  • Quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations
  • Use in a parody of some of the content of the work parodied
  • Summary of an address or article, with brief quotations, in a news report
  • Reproduction by a library of a portion of a work to replace part of a damaged copy
  • Reproduction by a teacher or student of a small part of a work to illustrate a lesson
  • Reproduction of a work in legislative or judicial proceedings or reports
  • Incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

Ask Permission, Ask an Attorney

For the protection of the interests of all concerned, the U.S. Copyright Office recommends getting permission from the copyright owner before using copyrighted material.

Where publishers are concerned, in many cases the use of a limited amount of material in a publication with proper attribution can be considered a sort of promotion — for example, publishing a recipe or two from a cookbook — for the book and is generally granted.

To get excerpt reprint permission from a publisher, generally you go through the rights department.

If getting permission isn't practical or possible, the Copyright Office recommends avoiding the use of copyrighted material unless the user is confident that the doctrine of fair use would apply to the situation. If there's any doubt, an attorney should be consulted.