Open Educational Resources Community of Learning

Module 4: Licensing: Creator's Rights, User's Rights

Rights of Copyright Holders

Having a "copyright" means that a copyright holder has the exclusive economic rights to make use of their work in some ways, including making copies, distributing copies, performing or displaying the work, creating derivative works, and granting licenses to share their exclusive rights with other people. 

Rights of Users: Fair Use

Copyright law is about the rights of the users as much as it is about the exclusive rights of the copyright holder. The Copyright Act includes many rights for users, such as first sale, library preservation and reproduction for people with disabilities. For most users, the most important right they have is fair use. Fair use is often associated with criticism, commentary, and research.

There are four factors to consider when determining whether your use is a fair one. All the factors must be considered holistically. Not all the factors have to favor fair use for the use to be fair. The four fair use factors are:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work (using an unpublished, creative work is less likely to be fair use compared with using a factual work);
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The first and fourth factors are typically the most important. Courts also favor "transformative use," i.e. when a use is completely new or unexpected. The fair use analysis is fact-specific and not a strict science. For example, in the case below, the court decided only the third and fourth factors drove their final decision.

 

Two version of Soglin side by side
Images used under fair use.

Take a look at the two images: the one on the left is a photo of Madison, Wisconsin Mayor Paul Soglin, and the one on the right is a “posterized” version of the photograph with the background removed and the mayor’s face turned lime green. Because of the fair use doctrine, the copyright holder of the image on the left was not able to stop people from printing the image on the right on t-shirts for a local block party event. The court found that the t-shirts did not reduce the demand for the photograph (factor 4), and the extent of the t-shirts' copying in relation to the whole of the photograph was minimal, amounting only to “a hint of [the mayor’s] smile” and “the outline of his face” (factor 3).

You may find yourself relying on the fair use doctrine often in your daily life, even without thinking about it. For example, when you write an essay criticizing a contemporary poem, you may need to quote almost every single line of the poem; the first factor will strongly be in your favor, which will drive the fair use analysis in this case. 

However, an educational purpose does not automatically make a use fair. For example, if you were to copy the entirety of your friend's math text book for a math class, it is not likely to be a fair use, because you would be harming the market for the text book.

Attribution: This page is from U.S. Copyright Basics [short ver.] by Yuanxiao Xu licensed CC BY 4.0.