VCU Libraries

Research Guides

Copyright for Faculty

What is Fair Use?

Fair use is a right that recognizes that there are certain uses of copyrighted works that benefit society without causing undue harm to copyright holders and therefore do not require permission from the copyright holder. 

Some of the "classic" examples of situations where a use is likely to be fair include criticism, commentary, parody, news reporting, teaching, scholarship, and research. However, not all uses for these purposes will automatically be fair.

Fair use is purposefully vague so that it can remain flexible as technologies and types of uses change over time. However, its vagueness can make it more difficult to decide when your use is or is not fair. In order to decide if a use is fair, you have to analyze the particular details of your situation and proposed use

Everyone is free to exercise their fair use rights, but in most cases, only a judge can definitively decide if a use is fair or not when a copyright infringement suit is brought to court. That means that those who want to exercise their fair use right will need to do so with careful thought and will need to weigh the risks involved in certain uses. 

Fair Use Analysis

Copyright law lists four factors that must be considered when making a fair use decision, although others can be considered. These factors are:

  1. The purpose and character of the intended use, including whether the use if for commercial or for non-profit educational purposes
  2. The nature of the copyrighted work being used
  3. The amount and substantiality of the work that is used in relation to the work as a whole
  4. The effect on the potential market for or value of the copyrighted work

Another factor that has emerged as a key consideration in recent copyright case law is transformative use. A particular use of a copyrighted work may be considered transformative if it uses the copyrighted work in a completely new way or with a new purpose that the original work's creator never intended and it does not merely supersede the use of the original work. A transformative use of a copyrighted work can help weigh in favor of fair use.

Thinking Through Fair Use from the University of Minnesota Libraries, the Fair Use Evaluator from the American Library Association, the Fair Use Checklist from Columbia University Libraries are all helpful tools to use when you are analyzing your proposed use in light of the fair use doctrine. 

Fair Use Infographics from the Association of Research Libraries