Fair Use for Authors: What You Need to Know About Using Copyrighted Materials in Your Work

In general, under U.S. copyright law, an author needs permission to use someone else’s work, such as excerpts of a literary work or an image, in their work. But the law includes several exceptions that allow works to be used without permission in certain circumstances. One of the most important exceptions is known as the fair use doctrine. This page explains what fair use is and will help you evaluate whether it may apply to your own work.

What Is Fair Use?

Fair use is an exception to liability for copyright infringement when a work is used without permission of the rightsowner. It aims to balance the exclusive rights of copyright owners with the public’s interest by allowing certain uses that would otherwise be infringing. Although it originated as a judge-made doctrine, fair use is now codified in section 107 of the Copyright Act, which states:

“[T]he fair use of a copyrighted work, including … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” There are no hard and fast rules as to what constitutes fair use. Instead, the Copyright Act lays out four factors that courts must consider in deciding whether fair use applies in any given case, and there is no set formula for how to weigh each factor. This means that the fair use analysis is very fact-specific and somewhat subjective, making it difficult to predict how a court might rule in many cases. That said, there are some types of uses at either extreme that are clearly fair use, such as quotation and copying 1–2 page book excerpts for classroom use, or clearly not fair use, such as copying entire books and distributing them to others, whether or not for commercial gain.

The Four Factors

The four non-exclusive factors that the Copyright Act instructs courts to consider are described below.

1. Purpose and Character of the Use

The first factor considers “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Non-commercial uses are more likely to be considered fair use than commercial uses. But just because a use is commercial in nature does not mean that it is infringing. In fact, many common examples of fair use—such as quoting portions of a book in a newspaper review—are generally made by for-profit entities. Likewise, just because a use is non-commercial does not mean it is non-infringing, as much harm can be caused to a work when a secondary work is intended to substitute for it—whether or not it is motivated by financial gain. 

Transformativeness

Under the first factor, courts also consider whether the use is “transformative”—i.e., whether it has a further purpose or different character from that of the original work. If so, a court is more likely to find the use to be fair, though it will not be decisive in determining whether the first factor weighs in favor of fair use. In a recent case, the Supreme Court clarified that “transformativeness” is a matter of degree and must be weighed against whether the use is commercial in nature.

Parody is a classic example of a transformative use. Other uses that courts have found to be transformative include printing thumbnail-sized reproductions of Grateful Dead concert posters as historical artifacts in a biography of the band and a novel that critiqued Gone with the Wind’s portrayal of the Civil War-era South by retelling parts of the story from the perspective of an enslaved person.

A secondary work is not transformative if it can serve as a substitute for the original in the marketplace. For instance, in the case of The Wind Done Gone (the aforementioned critique of Gone with the Wind), the court found that purchases of the secondary work would not substitute for the original.

2. Nature of the Copyrighted Work

Generally, the use of factual works is more likely to be fair than the use of highly creative works because copyright does not protect facts or ideas. This, however, does not mean that non-fiction and factual works completely lack protection— rather, the analysis depends on the creative expression in the work apart from the underlying facts and ideas.

In addition, if a work is unpublished, that tends to weigh against a finding of fair use, although it does not by itself bar such a finding.

3. Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole

Under this factor, courts weigh the amount and substantiality of the portion of the work used from both a qualitative and quantitative perspective. Which parts were used—i.e., does the use include the “heart” of the original work—matters as much as how much of the original work was used.

There is no specific percentage or other bright-line rule to determine what proportion of a work may be used. In some cases, courts have found the copying of entire works to be fair where the end use did not compete with the market for the work itself (e.g., where a work is copied for search engine use), while in other cases, courts have found the copying of a small but qualitatively important portion to be infringing. For instance, the Supreme Court found that The Nation’s copying of a short (about 300 words) but central passage from President Gerald Ford’s autobiography (describing his decision to pardon Richard Nixon) was not fair use.

4. Effect of the Use on the Potential Market for or Value of the Copyrighted Work

If the use has the potential to harm the value of the original work by supplanting it in the marketplace, this weighs against fair use. The market harmed must be one that the copyright owner has the right to control, such as the sale or licensing of copies of a work or the creation of a derivative work.

Courts consider both actual harm that has occurred and potential future harm. They look at how the use might affect the market for the original work if the challenged use were to become widespread and unrestricted.

General Takeaways for Authors

While there are rarely easy yes or no answers as fair use must be evaluated on a case-by-case basis, the following guidelines may help:

• A short quote from a much larger work will often be fair use, especially when you are using it to explain, teach, or comment on it. Use quotations and cite where appropriate.
• If you are taking more than is necessary for your purpose, it likely will not be fair use. Take as much as you need to make your point and nothing more.
• If the use is normally licensed (e.g., sequels, spinoffs), it is likely not fair use. There are exceptions to this like parody and criticism, which courts have pointed out are rarely authorized.
• If you are using someone else’s work to save the labor of writing something yourself, or for its aesthetic value rather than to comment on it, it is likely not fair use.
• Fair use is a U.S. law. Other countries have specific exceptions for various uses, such as teaching, access for disabled persons, criticism, parody, etc.

More Information

For more information on all the fair use factors and many of the underlying court cases, check out our recent Fair Use Q&A webinar with Authors Guild CEO Mary Rasenberger and Director of Policy and Advocacy Umair Kazi.

Get Help with Specific Fair Use Scenarios

Our legal team can help you determine whether a specific use is fair use. Regular and associate members of the Authors Guild can submit a legal request here.

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