So, you've identified a resource you like but it's not in the public domain and it isn't licensed under one of the first four (least restrictive) Creative Commons licenses. Your last best shot is to see if it's covered under "Fair Use."

What is "fair use"?
Fair use is an exception to the exclusive protection of copyright under American law. It permits certain limited uses without permission from the author or owner. Depending on the circumstances, copying may be considered "fair" for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.

To determine whether a specific use under one of these categories is "fair," courts are required to consider the following factors: The...

Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
Nature of the copyrighted work;
Amount and substantiality of the portion used in relation to the copyrighted work as a whole (is it long or short in length, that is, are you copying the entire work, as you might with an image, or just part as you might with a long novel); and
Effect of the use upon the potential market for or value of the copyrighted work.

Keep in mind that even in an educational setting, it is not fair use to copy for a "commercial motive" or to copy "systematically," that is, "where the aim is to substitute for subscription or purchase." No factor by itself will determine whether a particular use is "fair." All four factors must be weighed together in light of the circumstances.

Most important take-aways:

If you're hoping to use a resource under the "fair use" exception, consider ALL four factors including purpose, nature, amount, and effect
Use the lists below to identify clues that your use will or won't be covered under the fair use exception
If in doubt, ask for a second opinion! Our librarians are happy to help you make the determination.

Factors to help you decide whether you're covered under fair use:

1. Purpose

In terms of the first criterion, purpose, these factors favor categorizing as fair use:

✅ You're using it for teaching (including multiple copies for classroom use), research, or scholarship;
✅ You're at a nonprofit educational institution
✅ You're using it to provide criticism and/or commentary
✅ News reporting
✅ You're using it in a transformative or productive way (that changes the work for new utility)
✅ You're restricting access to the work (perhaps limiting only to students enrolled in your course)

In terms of purpose, these factors suggest your use is NOT covered under fair use:

🚫 You're using it for commercial activity
🚫 You're profiting from the use
🚫 You're using it for entertainment purposes
🚫 You're engaging in bad-faith behavior
🚫 You're denying credit to the original author

2. Nature

In terms of the second criterion, nature of use, these factors favor categorizing as fair use:

✅ It's a published work
✅ It's factual or nonfiction based
✅ The resource is important to favored educational objectives (?? Does that sound super subjective to anyone else but me?)

In terms of nature, these factors suggest your use is NOT covered under fair use:

🚫 It's not a published work
🚫 It's a highly creative work like art, music, novels, films, or plays)
🚫 It's a work of fiction

3. Amount

In terms of the third criterion, amount, these factors favor categorizing as fair use:

✅ You're using a small quantity of a larger work
✅ The portion you're using isn't central or significant to the entire work
✅ The amount you're using is appropriate for a favored educational purpose

In terms of purpose, these factors suggest your use is NOT covered under fair use:

🚫 You're using a large portion or the whole work
🚫 The portion you're using is central to or is the "heart of the work"

4. Effect

In terms of the first criterion, purpose, these factors favor categorizing as fair use:

✅ You're using it for teaching (including multiple copies for classroom use), research, or scholarship;
✅ You're only making one or a few copies
✅ There's no significant effect on the market or potential market for the copyrighted work
✅There's no other licensing mechanism available

In terms of purpose, these factors suggest your use is NOT covered under fair use:

🚫 Your use could replace the sale of the copyrighted work
🚫 Your use significantly impairs the market or potential market for copyrighted work or a derivative work
🚫 There's another reasonably available licensing mechanism for use of the copyrighted work
🚫 There's an affordable permission available for using the work
🚫 You're making "numerous" copies
🚫 You're making it accessible on the internet or in another public forum
🚫 You're using it repeatedly or over a long-term

Licenses and Attributions

This text was adopted from: “Copyright and Primary Sources.” Library of Congress .