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Fair Use

The defence that allows limited use of a copyrighted work without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship and research - the four statutory factors, what "transformative" has come to mean, and why no rule of thumb about word counts or percentages is the law.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

Fair use is the principal limit on the copyright owner's exclusive rights. The statute lists purposes that may qualify - criticism, comment, news reporting, teaching, scholarship and research - and then directs a court to weigh four factors in every case: the purpose and character of the use, including whether it is commercial or non-profit educational; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the whole; and the effect of the use on the potential market for or value of the original. The list of purposes is illustrative and the factors are not a checklist: they are weighed together, and the outcome is a judgement about whether this use, on these facts, is the kind of borrowing copyright should tolerate.

The first factor has come to dominate through the idea of transformative use: whether the new work adds something new, with a further purpose or different character, rather than merely superseding the original. A parody that targets the original, a search engine's thumbnails, a book-search index, a critical review quoting passages, a scholar analysing a text - these have been held fair; a use that serves substantially the same purpose as the original, even with alterations, weighs against fair use, and the Supreme Court has recently emphasised that the specific use being challenged, not the artist's general style, is what is assessed. Commercial use does not disqualify, and non-profit use does not guarantee; the factor is about purpose, not profit.

Popular rules of thumb - a fixed number of words, a percentage of the work, a number of seconds of music, attribution, a disclaimer - have no basis in the statute, and giving credit is not a defence to infringement, though it may bear on good faith. Using the "heart" of a work can be too much even when the portion is small. Fair use is decided case by case and is an affirmative defence the user must prove, which means a person relying on it bears the cost and uncertainty of litigation. Related but distinct limits include the classroom-performance and library exceptions, which are specific statutory provisions rather than fair use.

Where this comes from

Fair use is 17 U.S.C. § 107. The principal decisions are Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) (parody and transformative use), Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) (the "heart" of the work and market harm), Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984) (home time-shifting), Google v. Oracle America, 593 U.S. 1 (2021) (software interfaces), and Andy Warhol Foundation v. Goldsmith, 598 U.S. 508 (2023) (the first factor assessed against the specific challenged use). Authors Guild v. Google, 804 F.3d 202 (2d Cir. 2015), and Perfect 10 v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007), are the principal appellate applications. The classroom and library exceptions are §§ 110 and 108. The Copyright Office maintains a Fair Use Index of decisions.

When people hire a lawyer for this

Fair use is worth a lawyer's opinion before publication rather than after a claim, particularly for a commercial project - a documentary, a book, a course, an app - that quotes, samples or reproduces others' work, because the analysis can often be improved by changing how much is used and how, and because an opinion letter bears on wilfulness if a claim is later made. A person who has received a takedown or a demand and believes the use is fair should get advice before filing a counter-notice, since a counter-notice invites the lawsuit that will decide it.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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