Office of The General Council
The Office of the General Counsel provides legal advice and counsel to University of Nebraska faculty and staff regarding intellectual property matters, particularly as related to copyrights and trademarks.
Laura Gonnerman
Associate General Counsel
University of Nebraska System
Office: 402-472-1201
lgonnerman@nebraska.edu
Note: The Office of the General Counsel cannot provide legal advice to students or employees about legal problems that are personal in nature.
This guide is meant to give you information about copyright, fair use, and other intellectual property topics. It is not intended to provide legal advice. If you have questions about a particular copyright situation, please consult a lawyer or the University of Nebraska System's Office of the General Counsel.
What is Fair Use?
Fair Use is a legal doctrine that permits the use of copyrighted works under specific circumstances without the need to secure a license or ask for permission and is meant to promote freedom of expression. Those circumstances include, but are not necessarily limited to: criticism, commentary, parody, news reporting, teaching, scholarship, or research. However, fair use is not a free pass to use someone else's work, simply claiming that the use falls under one of the categories mentioned does not necessarily mean that it automatically falls under fair use, and best practice dictates you must still give credit to the original creator.
In order to determine fair use, there is a four-factor test that is used to determine if the use qualifies. The Four Factors are:
- Purpose and character of the use.
- Nature of the work you are using.
- Amount and substantiality used
- Effect on the market
None of these factors on their own guarantees fair use, all the factors are weighed together when making a determination. It is important to remember that while there are guidelines as to what could constitute fair use, each case is considered separately with their own unique nuances.
The Doctrine of Fair Use
Incorporated into the Copyright Act of 1976, Title 17, Section 107
Fair Use Four-Factor Test
The purpose and character of the use of the copyrighted work, including whether such use is of a commercial nature or is for nonprofit or educational purposes. However, not all non--profit or educational use is fair, and not all commercial use is unfair. Whether the use is considered "transformative" is also taken into consideration. Transformative use is that which adds something new to the work that gives it a new purpose or character.
| Favoring Fair Use | Opposing Fair Use |
|---|---|
| Teaching (in-classroom use) | Entertainment based uses |
| Research and Scholarship | Profit generating uses |
| Commentary, Criticism, Satire | Original creator is not credited |
| Transformative Use | Non-transformative |
Example: A professor places a journal article from a that is required reading for his class on his personal website and directs students to go there for access.
Is it fair use? (click to reveal)
This would not be fair use and would be considered infringement. While the use is for educational purposes, a personal website is not considered educational and is making the article publicly accessible. However, if the professor placed the article in a closed system like Canvas where only students registered for their class have access, or distributed copies in class, that could be fair use.
Keep in mind though that long-term use is also taken into account in this scenario. If the professor is using the same article over several years, that would also be infringement even if you are distributing only in a closed environment like class or Canvas. You should update your course materials regularly, you don't want to teach with outdated materials anyway.
The nature of the copyrighted work. This factor takes into consideration if the work is creative, imaginative (such as a work of art), or factual (such as a news item or manual). Use of creative and unpublished works are less likely to be considered fair than factual works due to the fact that copyright ownership is meant to encourage creative expression.
| Favoring Fair Use | Opposing Fair Use |
|---|---|
| The work is factual, non-fiction, news | Creative works tend to oppose fair use |
| Has been published | Unpublished works tend to oppose fair use |
| Central to instructional goals |
Example: A music professor creates a presentation featuring contemporary artists, records it and places it Canvas.
Is it fair use? (click to reveal)
As long as access is restricted to the students and is not made publicly available, this is fair use.
As you can see, while use of creative works tends to not favor fair use, there are situations in which exceptions can be made.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Which part of the work is used is also taken into consideration. There have been instances where using a large part of the work, or all of it, has been considered fair. However, there have also been instances in which only a small part was used but that part constituted the most important part - known as the heart - of the work and therefore not considered fair.
| Favoring Fair Use | Opposing Fair Use |
|---|---|
| A small quantity of the work is used | The entire work or a large portion is used |
| Portion used is not the "heart" of the work | Portion used is central to the work ("heart) |
| Amount used is appropriate for classroom instruction | Portion used is more than what is needed to meet instructional goals |
Example: A professor finds a book chapter that is of particular interest to the topic she teaches and wants the students to read it. However, the rest of the book is not relevant and the book is expensive. The professor makes a copy of the chapter and distributes it to her students either in Canvas or hands out copies during class in person.
Is it fair use? (click to reveal)
This would be fair use. The professor is not distributing the entirety of the work and is limiting the distribution to students in a specific class in a closed environment. However, as with the journal article example, repeated, long-term use is not fair and the professor will want to update course materials regularly.
The effect of the use upon the potential market for, or value of, the copyrighted work. This factor determines whether the use of the copyrighted work has the potential to harm the current or future market of the original work and to what extent it could be harmed. Courts will take into consideration if the unlicensed use could harm sales or profitability of the original work.
| Favoring Fair Use | Opposing Fair Use |
|---|---|
| Copy of original work is legally acquired | Copy of original work was not legally obtained |
| No significant effect on the market | Use harms or replaces sale of original work |
| Limited number of copies are made | Many copies are made and/or use is repeated/long-term |
| One time use restricted to your students | Copies are made publicly available |
| Licensing is not available for its intended use | Reasonable copyright license is available |
Example: Believing a textbook to be too expensive, the professor copies the textbook for her students and places it in Canvas.
Is it fair use? (click to reveal)
This is not fair use. In this instance the professor is not only copying the entirety of the work, but is completely circumventing the market. In general, this type of sharing of textbooks will always be considered circumvention.
This is not the same as placing a book under course reserve in a library or allowing students to borrow your copy of a book. You are not making copies of a book when you place it under course reserves or allow someone to borrow. As long as you obtained your copy legally, this is allowed.
Fair Use Resources
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U.S. Copyright Office Fair Use IndexThe Fair Use Index tracks a variety of judicial decisions to help both lawyers and non-lawyers better understand the types of uses courts have previously determined to be fair—or not fair.
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University of Nebraska System's Memorandum on Copyright Law and ComplianceThe guiding document for the campus community in understanding copyright.
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Intellectual Property - NU Office of the General CounselThe Office of the General Counsel provides legal advice and counsel to University of Nebraska faculty and staff regarding intellectual property matters, particularly as related to copyrights and trademarks.
