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Understanding Copyright: Exemptions & Fair Use

Obtaining the right to copy

  • Permission can always be requested from the copyright holder.  A sample letter requesting permission can be found below.
  • Although the person who creates a work holds the copyright, there are rights that can be exerted by others when they want to use or copy part of a copyrighted work.  Some of the exceptions that pertain to education and teaching are listed below:
    • Section 107:  Fair Use - If the copying falls under one or more of the 4 fair use factors, it MIGHT be considered a fair use exemption
    • Section 108:  Reproduction by libraries and archives  - Libraries and archives (and their users) have exemptions to make copies of journal articles. small sections of books, etc.  - if the use is going to be held by that individual only, is research related and is not for profit.
    • Section 109:  Effect of transfer of particular copy or phonorecord - Allows for owners of a copy or phonorecord to transfer that copy by loan, sale or just giving it away.  Also known as the First Sale Doctrine.
    • Section 110:  Exemption of certain performances and displays -  Among other things, allows for display/performance of some works when used in face-to-face instruction. 

Fair Use Factors

Fair Use is an exemption that is provided within the copyright law, that allows someone to use a copyrighted work without permission. 

There are four factors considered for fair use; not all have to be met in order for the fair use argument to be used - however, just meeting one of the factors can also not necessarily be considered conclusive.

Purpose Nature Amount Effect

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational
purposes;  was the
use transformative?

the nature
of the copyrighted work

the amount and substantiality of the portion used in relation to the copyrighted work as a whole the effect of the use upon the potential market for or value of the copyrighted work


The difficult aspect of fair use is that there is no hard and fast way to know if your use is a fair use; that can only be decided by litigation.  All four of these factors need to be considered when trying to decide. 

For example, anything used when teaching a class is probably an educational use, which is one of the four factors.  However, this doesn't mean that a court would rule favorably in every single case that involved teaching; the other factors also play a part. 

Was the use transformative or a direct copy?  There is more leeway for a transformative use, such as a parody or mash up, than for a direct copy of a piece of work.  A good example of this is the Andy Warhol Campbell Soup can paintings; while they directly copied the cans, their transformation is what made the copy allowable.

Was the amount used reasonable or was it the entire work or the "essence" of the work?  Did the use have an effect on the market for the item?  Was the work used fiction or non-fiction?  Courts tend to look more favorably at allowing the exemption if the item was nonfiction.  For example, using part of a newspaper story vs. using part of a novel.

There are some handy tools to use when considering fair use. 

  • This checklist helps when considering the fair use factors.
  • This "visualizer" is a fun way to get a picture that guides you on the strength of your fair use argument