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Fair Use: Factor 3: Substantiality

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

Factor 3: Substantiality of the Portion Used

The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

Fair use consideration is judged in a primarily qualitative rather than quantitative method, so specific content limitations on the amount used is not precise. Generally, the less used the more likely it can be counted for fair use. Also, consider the portion amount in proportion to the total amount.

Tips and core concepts:

  • The “heart” of the work--the core, representative point of the work--may not be considered fair use because it is the most valuable part of the work. It should not be able to substitute for the point of the original content
  • There is no fixed definition for what counts as a small portion of a work, but in general, the smaller the percentage that you use, the better the case for fair use.
  • When considering fair use, all content from a single source is considered as a total sum (rather than within individual excerpts) in this proportion of substantiality
  • Images are harder to consider for fair use because using an image is the entirety of that work
  • Using content as a standalone object, like an epigraph, in your work is unlikely to be considered for fair use, as you are not adding anything of value to that content. You’re using it merely as an extra color rather than as a component of critical discussion.