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Fair Use: Factor 1: Purpose

In some cases, I don’t actually need to ask for permission to use others’ content?!

Factor 1: Purpose of Work

The purpose and character of use, including whether the use is for commercial or noncommercial purposes;

In recent years a determination of whether a use is "transformative" has become an important part of many fair use analyses.  A transformative use occurs when the work is used for a “broadly beneficial purpose different from that of the original.”

If you can arguably regard your usage of the content to transform the content, rather than merely reproducing it, you can more likely consider fair use. Transformative examples include making commentary or critique on the work; creating a new interpretation of the work; and revising to a parody of the work.

A noncommercial use of the work will also be considered more likely for fair use.

Example: Supplemental Content for Class

Scenario

Professor Garcia teaches a survey course on American poetry with a focus on the 20th century. Most of the readings are drawn from the student's textbook, The Oxford Book of American Poetry (Oxford, 2006), but she wants to supplement the text with some additional material. To do this, she selects individual poems from a variety of poets, scans them, and posts them to the course reading section of the course's Sakai site. One of the poems she wants students to read is the book-length The Book of Nightmares (Mariner, 1973) by Galway Kinnell, so she scans the 88-page book to PDF and uploads it to Sakai. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Garcia's use is transformative. The original purpose of The Book of Nightmares is aesthetic. Professor Garcia is using the poem to instruct students in the themes, techniques and development of modern American poetry. She places the work in question in the broader context of the other readings in the course, and we can presume that she will offer critical commentary about the poem and explain its significance within this framework.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Professor Garcia's use is transformative, and she is using the work for nonprofit educational purposes, both of which strongly favor fair use. Not favoring fair use, however, is the fact that the work is highly creative and that she reproduced it in its entirety. The book is still in print, thus the rightsholder could make a strong argument that the professor's use (and similar uses, were they to occur) damaged the market for the book. The fair use argument is helped by the fact that the book was placed in Sakai and access was limited to students enrolled in the course. The fact that students can download the file and potentially redistribute it, however, is a liability.

Fair use: Probably not.

Example: Analyze Images

Scenario

Professor Lee is teaching an online photography course. His colleague Professor Jones had showed him an image from the Associated Press of tourists in Red Square wearing face masks to protect themselves from the smog during the the 2010 Russian wildfires. Professor Lee felt that this photograph was a particularly good example of image composition and depth of field. He decided to use the photo in his online lecture notes for the class, which he makes available on his personal website without access restrictions. In the text surrounding the image, Professor Lee clearly stated his purpose in displaying the image, explaining in detail how the image exemplifies the photographic concepts he is discussing. Is this fair use?

Analysis

1. Did the use "transform" the material taken from the copyrighted work by using it for a broadly beneficial purpose different from that of the original, or did it just repeat the work for the same intent and value as the original?

Yes, Professor Lee's use is transformative. The original purpose of the photo was to illustrate how bad the air quality was in Moscow during the wildfires. Professor Lee's purpose for using the photo is to illustrate concepts and techniques in photography.

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Because Professor Lee's use is transformative, and because it is necessary for him to use the entire image in order to illustrate the photographic techniques he is presenting, the material taken is appropriate in kind and amount, even though the image is a creative work.

Fair use: Yes.

Note: The fact that Professor Lee's lecture notes are freely available on his website does not in and of itself undermine his fair use argument. However, his use is more likely to be challenged by the rightsholder than if he had used a course management system like Sakai to limit access to only the students in his class. Access restrictions are not a requirement of fair use, but they demonstrate a good faith intention to limit the use of the image to educational purposes.

Example: Share Article with Other Institution

Scenario

Diane works at UNC-Chapel Hill. She finds Jack's article in an electronic journal and saves the full-text PDF to her computer. She knows her cousin would want to read it as well, but unfortunately, his university doesn't subscribe to this journal.

Analysis

The publisher may allow a limited amount of scholarly sharing, or the fair use exception may allow Diane to share the article for educational and scholarly purposes. However, Diane should avoid sharing copyrighted articles systematically and widely.

Fair use: Maybe.

Example: Commercial Knock-offs

Scenario

Another publisher (not the Harry Potter rightsholder) wants to create and sell a Harry Potter encyclopedia.

Analysis

The creation of a Harry Potter encyclopedia was determined to be “slightly transformative” (because it made the Harry Potter terms and lexicons available in one volume), but this transformative quality was not enough to justify a fair use defense in light of the extensive verbatim use of text from the Harry Potter books. (Warner Bros. Entertainment, Inc. v. RDR Books, 575 F.Supp.2d 513 (S.D. N.Y. 2008).)

Fair use: No.

  • Last Updated: Feb 10, 2021 10:28 AM
  • URL: https://guides.lib.unc.edu/fair-use