Which of the following allows portions of copyrighted materials to be used without permission under certain circumstances?

Fair use is an affirmative defense that can be raised in response to claims by a copyright owner that a person is infringing a copyright. Fair use permits a party to use a copyrighted work without the copyright owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. These purposes only illustrate what might be considered as fair use and are not examples of what will always be considered as fair use. In fact, there are no bright-line rules in determining fair use, since it is determined on a case-by-case basis. But copyright law does establish four factors that must be considered in deciding whether a use constitutes a fair use. These factors are:

• The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.

Although one factor or another may weigh more heavily in a fair use determination, each of the factors must be considered and no one factor alone can determine whether the use falls within the fair use exception. However, the factors that are usually the most influential are the first and fourth factors.

Factor 1: The Purpose and Character of the Use

The first factor mostly focuses on whether the use is commercial or non-commercial and whether the use is transformative. If a use is commercial it is less likely to be fair use and if it is non-commercial it is more likely to be fair use. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. If the use is transformative it is more likely to be fair use and if it is not transformative it is less likely to be fair use.

Factor 2: The Nature of the Copyrighted Work

The second factor considers the nature of the underlying work, specifically whether it is more creative or more factual. Use of a more creative or imaginative underlying work is less likely to support a claim of fair use, while use of a factual work would be more likely to support a fair use claim. This factor also looks at the publication status of the copyrighted work. When the copyrighted work is unpublished the use is less likely to be a fair use.

Factor 3: The Amount Used

The third factor considers the amount of the copyrighted work that was used compared to the copyrighted work as a whole. Where the amount used is very small in relation to the copyrighted work, this factor will favor a finding of fair use, but where the amount used is not insignificant, this factor will favor the copyright owner. This factor also considers the qualitative amount of the copyrighted work used. If the portion used was the “heart” of the work, this factor will likely weigh against a finding of fair use even if that portion was otherwise a very small amount.

Factor 4: The Effect of the Use on the Market

The fourth factor not only considers whether the defendant’s activities may harm the current market, but also considers whether the use may cause any harm to potential markets that could be exploited by the copyright owner if the use were to become widespread. If the use harms the copyright owner’s current or potential market then it will weigh against fair use. Along with the first factor, this factor is one of the most important in the fair use analysis.

For more information, see the fair use in the Copyright Law Explained section of the site.

Fair use is a legal doctrine that says you can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner.

Fair use guidelines

Different countries have different rules about when it’s OK to use material without the copyright owner’s permission. For example, in the United States, works of commentary, criticism, research, teaching, or news reporting may be considered fair use. Some other countries have a similar concept called fair dealing that may work differently.

Courts look over potential fair use cases according to the facts of each specific case. You’ll probably want to get legal advice from an expert before uploading videos that contain copyright-protected material.

The four factors of fair use

In the United States, judges decide what’s considered fair use. A judge will consider how the four factors of fair use apply to each specific case. The four factors of fair use are:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

Courts typically focus on whether the use of copyright-protected material is “transformative.” This means whether the use adds new expression or meaning to the original material, or whether it merely copies from the original.

Commercial uses are less likely to be considered fair use, but it’s still possible to monetize a video that contains fair use material.

2. The nature of the copyrighted work

Using material from primarily factual works is more likely to be fair use than using purely fictional works.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

Borrowing small bits of material from an original work is more likely to be considered fair use than borrowing large portions. But, if what’s borrowed is considered the "heart" of the work, sometimes even a small sampling may weigh against fair use.

4. The effect of the use upon the potential market for, or value of, the copyrighted work

Uses that harm the copyright owner’s ability to profit from their original work are less likely to be fair uses. Courts have sometimes made an exception under this factor in cases involving parodies.

Example of fair use

YouTube’s fair use protection

YouTube gets many takedown requests to remove videos that copyright owners claim are infringing under copyright law. Sometimes these requests target videos that seem like clear examples of fair use. Courts have decided that copyright owners must consider fair use before they send a copyright takedown notice. Because of this, we often ask copyright owners to confirm they’ve done this analysis.

In rare cases, we’ve asked creators to join an initiative that protects some examples of “fair use” on YouTube from copyright takedown requests. Through this initiative, YouTube indemnifies creators whose fair use videos have been subject to takedown notices for up to $1 million of legal costs in the event the takedown results in a copyright infringement lawsuit. The goal of this initiative is to make sure these creators have a chance to protect their work. It also aims to improve the creative world by educating on both the importance and limits of fair use.

Examples of YouTube’s fair use protection

Fracking Next Door

Note: If you're in the US, you can watch the videos we’ve protected in this playlist. Unfortunately, if you’re outside the US, you can’t view the videos in this playlist.

These example videos represent a small sampling of the large amount of copyright takedown requests we get. They also represent only a few of the large number of potential fair use videos that are subject to takedowns.

Each year, YouTube can offer fair use protection to only a few videos, which are chosen based on many factors. In general, we select videos that best demonstrate fair use based on the four factors of fair use listed above.

If your video is chosen for this initiative, we’ll let you know. It’s not necessary to reach out to us asking to protect your video. If we can offer you this protection, we’ll get in touch with you.

Reinstated videos

While YouTube can’t offer a legal defense to everyone, we remain vigilant about takedown notices impacting all creators. You may be aware of some notable cases where we’ve asked copyright owners to reconsider takedowns and reinstate fair use videos. For example:

• This video by the Young Turks, which shows short clips from a heavily criticized commercial as part of a conversation on why it offended viewers.
• This video by Secular Talk, which criticizes a political figure for endorsing an unproven treatment for diabetes.
• Buffy vs Edward: Twilight Remixed -- [original version], a remix video that compares the ways women are portrayed in two vampire-related works targeted at teens.
• "No Offense", a video uploaded by the National Organization for Marriage, which uses a clip of a celebrity as an example of rude behavior.

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