Last modified on April 9, 2019, at 12:03

Fair use

White House Pic

Fair use is a doctrine in the United States copyright law that permits copying of someone else's works without asking permission; there are rules when it applies. It is based on free speech rights provided by the First Amendment to the United States Constitution.

Other countries have similar provisions, called "fair dealing" in Britain, Canada and Australia.

The most common form of fair use is copying for educational purposes and without earning a profit. Another common type of fair use is news reporting.

Fair use is not needed when the material is in the "public domain." Facts are always in the public domain—they cannot be copyrighted (only the way they are phrased or the way they are selected and arranged can be copyrighted[1]).

U.S. law

Fair use is established by this federal statute:

17 U.S.C. § 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A [17 USCS §§ 106 and 106A], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

In short, we must often... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. (Folsom v. Marsh, 9 F. Cas. 342 (1841))

Courts almost never rule against fair use for educational uses. The exception comes when the goal is to avoid students' buying multiple copies of a textbook or similar item.

Right of fair use

Most commentators have considered fair use a "right" (Federal law refers to "the right of fair use").,[2] so the debate is not on abolishing it but on limiting its applicability. Some large copyright owners, especially those associated with the commercial music and film industry, argue that fair use should not be used with their products. "There is constant tension between those who argue that the fair use defense should be expanded, allowing the use of copyrighted works for free with no strings attached, and those who want to shrink the definition so they can more profitably exploit their copyrights, trademarks and patents," concludes Hollywood reporter Brooks Boliek.[3]

Many scholarly groups have explicitly emphasized that fair use is a valuable right. "It is the policy of the Special Libraries Association to reaffirm the right of fair use."[4] The Association of Research Libraries argues, "In order for copyright to truly serve its purpose of 'promoting progress,' the public's right of fair use must continue in the electronic era."[5] Official humanities groups like the American Council of Learned Societies, a consortium of the main scholarly societies in the humanities and social sciences, says, "The right of fair use is central to scholarship and the scholarly community and it should be embraced boldly."[6]

In industry, the Computer and Communications Industry Association (CCIA), led by Microsoft, Google, the Linux Foundation and Yahoo, argues that "is the very foundation of the digital age and a cornerstone of our economy." The Copyright Alliance, an umbrella group that represents the broad range of copyright owners; its executive director Patrick Ross said the CCIA is missing the point, saying, "There is no fair use without original creative works. Period....It is like trying to imagine a librarian without books. All those who embrace fair use must understand this and support creators who are producing the works they so prize." The copyright industries have their own numbers, claiming that in 2005 they accounted for about 11% of the GDP, or $1.38 trillion. Boliek reports that, "The entertainment industry has long used this economic contribution as a reason for the White House, lawmakers and regulators to back policies that benefit it. Those arguments have helped it win the battle for increased anti-piracy efforts, tougher laws that target infringement and for beneficial trade policies."[7]


Fair use, public domain and copyight are legal issues under federal law in the U.S. The UK, EU, Canada, Australia and Japan have similar national laws. Plagiarism is not a legal matter. Plagiarism (deceitfully taking credit for someone else's writing) is severely punished by schools and the academic world, whether or not the material was copyrighted.


It is believed that the use of low-resolution images to illustrate a non-profit work qualifies as fair use under United States copyright law.

Faithful reproductions of two-dimensional original works cannot themselves be copyrighted in the U.S. according to the rule in Bridgeman Art Library v. Corel Corp.

In Conservapedia, a tag like the following one should be placed accompanying the image in question.

Copyright Details
License: Fair use
Source: <source>

Author: <author>
Conservapedia notes:
Fair Use 1.png
This work may be subject to Copyright and unlicensed. However, it is believed that the use of this work:
  • is for nonprofit educational purposes, such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research;
  • to illustrate the object in question
  • where no free equivalent is available or could be created that would adequately give the same information
  • on Conservapedia, hosted on servers in the United States, qualifies as fair use under United States copyright law[6], subsection 107[7]. Any other uses of this image, on Conservapedia or elsewhere, may be copyright infringement. See also Conservapedia:Copyright.
User notes: <optional:user notes>
License reason: <reason>
  Please do not add this image to a userbox or to your user page. Any instance will be removed.
If you think this image is incorrectly licensed you may discuss this on the image's talk page.

Public Domain

Fair use does not apply to items that are in the "public domain" because there is no copyright holder, but physical access to the works may be controlled by a museum that does not allow reproductions. Texts and images published in the U.S. before January 1, 1923 are in the public domain. Work created by the federal government is in the public domain (but not work created by state of local governments). Before 1976 copyright expired after 28 years and had to be renewed; items that were not renewed are in the public domain.[8] Items that were published in the USA but never copyright in the first place are in the public domain in the USA. Items posted on web servers in the U.S. are covered only by American law.


The U.S. Constitution's copyright clause allows a work to be copied in the public interest (to "promote the Progress of Science and useful Arts") without the permission of the copyright holder. Since the primary purpose of copyright is to foster the dissemination of knowledge rather than to protect the property rights of the creator, U.S. courts decided users could make "fair use" of a creator's work in the interest of promoting knowledge, so long as the impact on the creator's rights was not too great. Over the years the courts established factors to be weighed when judging whether a use was fair in any particular case. From the 1940s to the 1970s, when protection of property rights became progressively less important to judges compared to the promotion of other social interests, the courts broadened the definition of fair use. Therefore, scholars had few problems quoting or photocopying reasonable amounts from the published works of others. Fair use doctrine is also supposed to protect free speech by preventing copyright holders from denying critics the right to quote from that which they are criticizing.

However newer court decisions have limited the right of scholars to quote from unpublished sources, such as private diaries or letters held in an archive, allowing the copyright owner to censor interpretations it does not approve.[9] Patrick Parrinder argues, "Without the act of quotation there is little possibility of free discussion, rational debate or open reporting. Direct and acknowledged quotation is essential to scholarship since it provides both quoter and quotee with a guarantee against misrepresentation."[10]

See also

External links

Further reading

  • Stephen Fishman. The Copyright Handbook: What Every Writer Needs to Know (2008) excerpt and text search
  • Mary LaFrance. Copyright Law in a Nutshell (2008)


  1. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 348 (1991)
  2. see section 108 of US Code at
  3. Brooks Boliek, "'Fair use' folk confront Hollywood," The Hollywood Reporter Sept 13, 2007 online at [1]
  4. see
  5. see
  6. [2]
  7. Brooks Boliek, "'Fair use' folk confront Hollywood," The Hollywood Reporter Sept 13, 2007 online at [3]
  8. For a list of renewals see the Project Gutenberg collections at [4], which cover everything except music.
  9. Michael Les Benedict, "Historians and the Continuing Controversy over Fair Use of Unpublished Manuscript Materials." American Historical Review 1986 91(4): 859-881. Full text: in JSTOR; Michael Les Benedict, "Copyright I: 'Fair Use' of Unpublished Sources," AHA Perspctives (April 1990) online at [5]; Kathleen K. Olson, "First Amendment Values in Fair Use Analysis." Journalism & Communication Monographs 2004 5(4): 159-202. Issn: 1522-6379
  10. Patrick Parrinder, "Quote unquote" Textual Practice 14#1 (2000) p. 138