Copyright at OCC

The Technology Management Committee (TMC) at Oakland Community College maintains this site to collect and disseminate copyright information on the fair use of intellectual property based on copyright law and policies established by the OCC Board of Trustees.

Fair Use Factors

Fair use of copyrighted works covers copies made for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Before using copyrighted materials in the classroom you must carefully consider whether your intended use reasonably falls under fair use. The determination of fair use is outlined in the copyright law and includes the consideration of four factors.

To think through whether a particular use is a fair use, you have to look at these details and other associated issues as a whole. Even then, fair use is unpredictable enough that the best anyone can do is make a well-informed, reasonable guess.

Alternatives to Fair Use

Rather than taking the time and effort to weigh all the considerations of whether your use of a copyrighted work might fall under fair use, you might consider these other options:

Fair Use Factors

The information below regarding fair use has been adapted from the University of Minnesota Libraries Understanding Fair Use page under a Creative Commons Attribution-NonCommercial 3.0 Unported (CC BY-NC 3.0) license.

Each possible use of an existing work must be looked at in detail and the law spells out several factors that determine whether a use is fair. No one factor is decisive - you always have to consider all of them, and some additional questions. Even after considering all relevant issues, the result is usually an impression that a particular use is “likely to be fair” or “not likely to be fair.” There are rarely definitive answers outside of courts.

Factor 1 - Purpose and Character of the Use
Purposes that favor fair use include education, scholarship, research, and news reporting, as well as criticism and commentary. Non-profit purposes also favor fair use, especially when coupled with one of the other favored purposes. Commercial or for-profit purposes weigh against fair use.

Factor 2 - Nature of the Original Work
There are two elements of this factor: whether the work is published or unpublished and whether the work is more factual or more creative. Fair use favors published works over unpublished, and factual over creative works. It is possible for use of unpublished and/or creative materials to be legally fair, but published and factual works are more favorable.

Factor 3 - Amount and Substantiality of the Portion Used
A particular use is usually more in favor of fair use if it uses a smaller amount of the source work rather than a larger amount, but that is all relative.  There are guidelines available for what amounts might be considered fair use, but the guidelines are not legally binding.  More information on guidelines are available on this guide.
You must also consider the substantiality of the portion used in relation to the copyrighted work as a whole, for example, whether you are using something from the "heart" of the work (less fair), or whether what you are borrowing is more peripheral (and more fair).  Again, shorter may be better, but in some cases even a short bit may be considered “the heart.”

Factor 4 - Effect of the Use on the Potential Market For or Value Of the Source Work
Could the use in question substitute for a sale that the copyright owner might otherwise make - either to the person making the proposed use, or to others? Generally speaking, where markets exist or are actually developing, courts tend to favor them quite a bit. Nevertheless, it is possible for a use to be fair even when it causes market harm.