Criterion 1: What is the purpose and character of the use?

Purpose: To be fair use, the material must be used for non-profit or educational purposes rather than for-profit or commercial uses. 

Character of the use: Use of a work may be fair if the work is adapted to use in your teachings. For example, you may want to include quotations of a work in a paper or parts of a copyright-protected work in a multimedia production. Simply photocopying a work would not be as apt to favor fair use, although multiple copies of limited amounts of some works can be allowed in certain situations, as explained in section 5 on copyright print guidelines.

Note: The fact that you are not charging money does not by itself constitute fair use.

Criterion 2: What is the nature of the work?

Fair use favors published over unpublished original works and factual over more creative works of personal expression, such as art, music, movies, plays, and novels. However, if the purpose and character of use is non-profit public education, even highly creative works can fall into the fair use arena. This factor is most likely to favor fair use in an educational setting.

Criterion 3: What is the amount and substantiality of the work being used?

Amount: Key to this criterion is the amount of the portion used in relation to the entire work. This is why specific numbers and percentages are difficult to assign. For example, 10 pages of a 270-page novel is far different from 10 pages of a 20-page journal article.

Substantiality of the work: This criterion also considers whether the heart or most significant part of the material is used. Using key plot scenes from a novel can weigh against fair use. However, as mentioned above, if the purpose is non-profit education or scholarly research, then in some cases using the heart of the work is considered fair use.

Criterion 4: What effect does the use have on the market for the original work?

Special attention should be paid to the market value of the work you are considering to use; if the market value is affected, the material usually cannot be used without permission.  

Several factors come into play here. For example, is the work available for sale? How widespread is the use? How long or how often will the work be used? Does this use affect the copyright owner's ability to collect royalties?

Researching the market value of material should not be cursory. Often the market for an item doesn’t disappear just because it is out of print.  For example, a ready market is available for earlier editions of books through the Copyright Clearance Center; for help in using the Copyright Clearance Center, refer to the Copyright FAQ, question 27.

Even when book or article rights revert to the authors, if those authors are well-known in academic circles, some of them have established businesses for distributing their works.

If the work is commercially available, then it is prudent to purchase or have the school purchase a copy. Even if the work is available for sale, it is permissible to use a legally obtained copy for one term. After that, an original should be purchased.

Finally, educational use should be limited to the educational community. This could include the class and parents, as well as the school’s faculty and administrators. In some cases, it is even permissible to use a copyrighted work in conference presentations. However, the reproduction of the work should not be made available to the general public.

After conducting a fair use analysis, you should be able to meet at least three of the four criteria, one of which must be criterion 4, before proceeding to use the material without getting permission.

If you do decide to use material following the fair use guidelines, always document your reasoning for doing so.  To aid in your analysis and documentation, please see A Checklist for Fair Use; or refer to the sample fair use analyses in the Copyright FAQ, question 26.

Always attribute the source on the first page of the work.  Include a full citation, and indicate that you are copying the material under fair use guidelines.

Conducting a fair use analysis is more flexible than following specific guidelines and can, depending on CMU’s risk tolerance, allow more generous use of materials without seeking permission. At the same time, the analysis is subjective and can be quite complicated. Determining the effect on the market can take some effort.   

If you prefer, you may opt to use the more specific guidelines outlined at this web site for each particular type of materials -- print, reserves, video and broadcast, software, digital media, music -- you are interested in using.  For example, in section 5 on Fair Use for Print Materials, the guidelines listed have the advantage of being more concrete.  Note, however, that they do not have the force of law and they are more restrictive than a fair use analysis may conclude.