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Fair Use Explained

"Fair use" is an affirmative defense to a claim of infringement. Fair use is codified in Section 107 of the Copyright Act and is ultimately determined by a court. Generally speaking, news media, educators, nonprofit organizations, researchers and anyone else making use of copyrighted materials without permission for certain limited purposes, such as commentary, parody, news reporting, research and education are making "fair use" of such materials and will have an affirmative defense to any claim of infringement from the owner of the copyrighted materials.

Section 107 defines "fair use" as the balancing of a number of factors, four of which are included as examples in the text of Section 107 of the Copyright Act. The exemplary four factors can be summarized as follows:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for non profit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and
  • The effect the use of the work would have on the potential market for or the value of the original work.

The distinction between "fair use" and infringement is unclear and is not easily defined. There is no specific number of words, lines or notes that may safely be taken without permission. Legal scholars, lawyers, politicians, copyright owners and other interested parties fail to agree upon the meaning and scope of fair use, and litigation concerning the meaning and scope of fair use is ongoing. If you have more questions contact JCCC's Mark Swails, copyright librarian.