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Copyright and Plagiarism: Fair Use

Resources about copyright and intellectual property

Definition of "Fair Use"

Sometimes it is permissible to use all or part of a copyrighted work without getting permission from the owner of the work. Fair Use is the term used to refer this limitation to the exclusive rights granted by copyright.(17 U.S.C. § 107)
In determining whether the use made of a work in any particular case is fair use, four factors are considered.  Be aware that a major failure to comply with even one factor can result in your use being determined to not be "fair."  These factors include:
  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work. (17 U.S.C. § 107)

Judging whether a use is "fair" is hard.  This is because none of these factors are absolute; all of the factors function on a continuous sliding scale, and the only time a firm answer is provided is after the factors have been considered by a court of law.

Note: Parodies which have disrespected established wholesome iconography have fared poorly under the "fair use doctrine."  Courts have ruled that use of these works is not considered to be a “fair use” despite meeting all the requirements associated with “fair use.”

Remember to ALWAYS CITE THE WORK, regardless of whether or not your use of the work is considered to be "fair use."  Failing to cite a work can result in Plagiarism.
Also always consider all 4 factors when determining if using the work falls under the "fair use" clause.

 

Purpose & Character

The purpose and context in which a work is reused is one of the factors considered to determine if the use of a work is "fair use." Transformative nonprofit uses including using a work for education, research, scholarship, or instruction are considered to be fair.  Using a work for other commercial purposes (i.e. to advertise a product) are considered "less fair."

Nature of the Work

Some types of works receive a higher level of copyright protection than other types of works.  For instance, works of fiction receive a higher level of protection than works of non-fiction.  This is because works of fiction require a higher level of creativity and these works can be judged as being more unique.  For example.  J. K. Rowling's writings about the fictional location of Hogwarts will receive a high level of copyright protection than a non-fictional account of the TTUHSCEP campus.

Amount & Substantiality

Another factor that needs to be considered is the amount of the original work that was used.  Did you use the entire work?  Or did you only use a small portion of the original work?  Sometimes even using only a small part is unacceptable.  This happens when the copier inadvertently selects material, which embodies the "heart" or the "essence of the work."  In the case of the Shakespearean play "Hamlet," the "To Be, Or Not to Be" soliloquy would be considered the heart of the work because it sums up Hamlet's experiences during the course of the play.  So just using the soliloquy would be unacceptable if this work were protected by copyright (all of Shakespeare's play are currently in the public domain).

Effect on Potential Market

The effect of using the work on the current and future commercial market for the work is the last factor that needs to be considered.  This means that if using the work hurts the current and/or future sales of the work the use is not "fair."  A use may meet all the other criteria, but be unfair because it fails this last test.  For example, if a teacher copies a single chapter from a non-fiction textbook to use in class, and thus causes the textbook's authors to lose sales of the textbook to the 40 students in the class, the use would not meet the criteria for a "fair use."

Making Copies for Classroom Use

There are three tests which have been traditionally needed to be passed in order to allow for the "fair use" of copyrighted printed materials in the classroom.  These are the Brevity Test, the Spontaneity Test, and the Cumulative Effect Test.  All three tests need to be passed in order to claim "fair use."

Brevity Test involves the amount of material used from a work.  It states that the use of copyrighted material needs to be as small as possible.  This limitation involving the character of the use sets specific limits to the amount of information from a single work, which may be used.  

  • Article - May use a complete article if the article is under 2500 words.
  • Textbook - May use an excerpt from the textbook, which is not more than 1,000 words or 10% of the work, whichever is less, and a minimum of 500 words.
  • Illustration - May use one graphic or illustration per textbook or article.
  • Special works (short pamphlets or works for children under 2500 words) - May not be reproduced in their entirety. May use two of the published pages but not more than 10% of the words found in the text.

Spontaneity Test involves the source of the inspiration for the use, and how much time has passed between the decision to use the work and when the work was used.  To pass this test both of the factors must be met.

  1. The idea to use the work for class must be the original idea of teacher of the class.
  2. There must be so little time between the inspiration to use the work and the using of the work that it would be unreasonable to expect the teacher to get a timely reply for a request for copyright permissions.  Currently, this time period is about 1 month. 

Cumulative Effect Test deals with the effect of the use on the market and the profit realized by the author of the work.  It is meant to limit the commercial impact of the use and includes:

  1. Copied materials are only used in one course in the university.
  2. The same item is not to be copied by the same teacher from term to term.
  3. Not more than one article may be copied from a single author, nor more than three articles from the same journal title may be copied during a one class term.
  4. There should not be more than nine instances of copying for a single class.
  5. Copying can not a substitute for student purchasing of books, textbooks, publisher's reprints, or periodicals.