How fair use works in the United States

A reviewer quotes a passage to show how a novelist handles time. A business copies the same passage because it sounds good in an advertisement. The words are identical. The uses are not, and fair use judges the use.

Fair use lets you use a copyrighted work without permission in some circumstances. Section 107 names criticism, comment, news reporting, teaching, scholarship and research as examples, and then lists four factors to weigh: the purpose and character of your use, the nature of the work you copy, how much you take, and the effect on the market for the original. 13 A label like "educational" or "commentary" does not settle the question. Courts weigh all four factors case by case, and only a federal court can finally decide whether a particular use is fair. 34

Ask what the borrowing is doing

The first factor looks at why and how you use the work, including whether the use is commercial or nonprofit educational. 1 Courts favor nonprofit educational and noncommercial uses, but not every noncommercial use is fair and not every commercial use is unfair. Uses that add something new, with a further purpose or different character, and that do not substitute for the original, are more likely to be fair. 3

Adding a new look or a new message is not enough on its own. In Andy Warhol Foundation v. Goldsmith (2023), the Foundation licensed Warhol's "Orange Prince", a silkscreen based on Lynn Goldsmith's photograph of Prince, to Condé Nast for a magazine cover commemorating Prince. The Supreme Court held that the first factor favored Goldsmith: both images were portraits of Prince used in magazines to illustrate stories about Prince, and the licensing was commercial. A new meaning or message was relevant but not decisive. 2

Two lessons follow for your own project:

• Judge the specific use, not the work. The same copying can be fair for one purpose and not for another. The Court ruled only on the 2016 magazine license and expressed no opinion on the creation, display or sale of the original Prince Series. 2
• Have a reason to copy this work. If your use serves the same purpose as the original and is commercial, the first factor is likely to weigh against you unless you have another justification, such as commentary or criticism that has to conjure up the original to make its point. 2

Look at the work and the amount together

The second factor looks at the work you copy. Using a creative work, such as a novel, film or song, is less likely to be fair than using a factual one, such as a technical article or news item. Using an unpublished work is also less likely to be fair. 3 Unpublished status alone does not rule fair use out. 1

The third factor looks at how much you take, in quantity and in importance. A large portion makes fair use less likely and a small amount makes it more likely, but a small amount can still be unfair if it is the "heart" of the work, and some courts have found copying an entire work fair in particular circumstances. 3

There is no safe number. No rule permits a set number of words, notes, lines, pages, seconds or a percentage of a work. 34 Take what your purpose needs and no more. For the review, quote the passage your analysis discusses. Adding several more chapters because readers would enjoy them breaks the link between what you take and why you take it.

Check whether your use replaces the original

The fourth factor asks whether, and how far, your use harms the existing or future market for the original. Courts look at whether it displaces sales of the original now, and whether it would cause substantial harm if uses like yours became widespread. 3 The question is whether your use substitutes for the original, not whether you charge money.

Compare a teaching page that closely examines one photograph with a free download folder containing the photographer's entire current collection. Both could be called educational. The first takes one image to explain it; the second hands people the collection they would otherwise buy. The amount, purpose and market effect are completely different.

Decide before you publish

1. Write down the specific use. Name the work, the portion you take, where it will appear and whether it earns money.
2. Answer the four factors for that use. Purpose and whether it adds something new; creative or factual, published or unpublished; how much and whether it is the heart; whether it substitutes for the original. 1
3. Look up comparable cases. The Copyright Office's Fair Use Index summarizes court decisions by subject, category of work and court, with the outcome of each. It is not complete, so treat it as a guide, not a rulebook. 5
4. Do not lean on credit or a disclaimer. Neither is one of the four factors. 1 Credit the source anyway, but weigh the factors.
5. When in doubt, ask. The Copyright Office recommends getting permission in cases of doubt; if you know the owner, contact them directly. 4 See How to ask for permission.

If you receive an infringement claim, or plan a commercial use that rests on fair use, have a copyright attorney assess that specific use before you publish or reply.

Fair use is part of how copyright is designed, not a loophole to apologize for. Knowing the four factors lets you make a stronger creative choice and explain it clearly.