What qualifies as “fair use”?

The principle of fair use allows certain uses of copyrighted material without requiring the user to get the permission of the copyright holder. Quoting or reproducing small amounts of an author’s or artist’s work in order to review or criticize it or to illustrate the user’s own argument is considered fair use. Many scholarly and academic uses of copyrighted work qualify as fair use.

However, determining exactly what is covered by fair use depends on the circumstances of use. In law a “rule of reason” determines whether a particular use is fair. Important factors in determining whether a particular use is fair include the following:

  • The nature of the use of the copyrighted material;
  • The nature of the copyrighted work from which the material is taken;
  • The proportion of the copyrighted work being reproduced in the new work;
  • The effect of the use on the commercial value of the work being quoted or reproduced.

The use is probably fair if:

  • The unlicensed use transforms the copyrighted material;
  • The reproduced part of the copyrighted work is used in an educational setting and no one earns money from its use (such as showing images of artwork or reciting a poem in class);
  • The copyrighted material was used in an appropriate way; that is, the original meaning was not distorted, the source was cited, and the material is necessary to the user’s argument;
  • Only a small part of the copyrighted work (relative to its length or size—a few sentences from a book or essay, a small detail of a painting, a screen shot or film still) was reproduced;
  • The use was reasonable according to the standards of a particular field.

Poetry and song lyrics

Fair use is particularly complicated when it comes to poetry and song lyrics. With poetry, the proportion of the work being quoted is crucial. Quoting two lines from a lengthy epic would most likely qualify as fair use; quoting two lines from a haiku would not. Even if the quotations are scattered through the text, reproducing a large part of the original work is not fair use and will require permission of the copyright holder. See the Center for Media and Social Impact’s Code of Best Practices in Fair Use for Poetry for guidance.

The same restrictions apply to song lyrics when they are under copyright. While folk or traditional music may be in the public domain, from the twentieth century on most popular songs have been copyrighted by recording companies or organizations such as the American Society of Composers, Authors, and Publishers. These entities tend to assert their rights over even very limited uses of lyrics in critical context (uses that might qualify as fair) and to charge high permission fees. Consult with your publisher about any quotations of song lyrics and use the music rights databases listed in the Resources section to identify rights holders.

—AUPresses Faculty Outreach Committee