LibGuides: Copyright: Fair Use

Defining Fair Use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. (Copyright.gov)

The Fair Use Doctrine is ambiguous, and it can be difficult to interpret what types of use constitute as "fair use." To help determine Fair Use, one must apply these four factors:

the purpose and character of your use
the nature of the copyrighted work
the amount and substantiality of the portion taken, and
the effect of the use upon the potential market.

Fair Use and Linking

To help answer questions about linking and framing and fair use, please consider the following resources: Stanford University has an excellent guide to copyright and fair use, including this page about linking.

Here, the following cases are mentioned:

Kelly v. Arriba Soft Corp

Perfect 10 v. Amazon

Futuredontics v. Applied Anagramics, Inc

The US Copyright Office has an index of fair use-related court decisions, providing one-page briefs about a given case and whether or not fair-use applies. Look for the “Search Index” button under the photo on the page.

Selecting "computer program" and "internet/digitization" from the categories list shows several cases which apply to linking and/or framing questions (including Kelly and Perfect 10, above) In almost every circumstance, the court used the four-factor test for determining fair use… and so it may be helpful to read the rationale presented to describe that process. For example, see: Walsh v Townsquare Media Inc, involving embedded Instagram posts.

Fair Use in Art and Design

Code of Best Practices in Fair Use for the Visual Arts
Published in 2015 by the College Art Association
Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report
A Report to the College Art Association; February 2014
Artists Rights 101
Learn about artists' intellectual property rights with this information from the Artists Rights Society
Digital Image Rights Computator
From the site: "The Digital Image Rights Computator (DIRC) program is intended to assist the user in assessing the intellectual property status of a specific image documenting a work of art, a designed object, or a portion of the built environment."

Links

Fair Use (Copyright.gov)
Additional information about the doctrine of Fair Use, from the U.S. Copyright office.
U.S. Copyright Office Fair Use Index
From the site: The Fair Use Index (from the US Copyright Office) 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. The decisions span multiple federal jurisdictions, including the U.S. Supreme Court, circuit courts of appeal, and district courts.
Copyright Essentials tip sheet
"What educators need to know in today’s remote and hybrid learning environments" - from the Copyright Clearance Center.