Fair use is a limit on copyright in the United States: when a use of copyrighted material qualifies as “fair,” it is not copyright infringement, even though the owner never gave permission. The doctrine is written into 17 U.S.C. § 107. It is decided case by case, by weighing four factors, and not by a fixed word count, percentage, or checklist of approved activities. This article is general legal information about U.S. law, not advice on any particular use.
What the statute says
Section 107 lists example purposes: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. The wording is “such as,” so these are illustrations. Falling into one of those categories does not by itself make a use fair, and a use outside them is not automatically unfair. The U.S. Copyright Office’s overview of fair use takes the same position.
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The doctrine dates to the Copyright Act of 1976, which codified principles courts had developed earlier. Congress added one sentence in 1992: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
The four factors
Courts must consider these factors. They are nonexclusive, and none decides the outcome alone.
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1. Purpose and character of the use
This factor asks what the new use is doing and in what setting. It expressly covers whether the use is commercial or for nonprofit educational purposes. In Campbell v. Acuff-Rose Music, Inc. (1994), the Supreme Court looked at whether a use adds something new, with a further purpose or different character. In Andy Warhol Foundation v. Goldsmith (2023), it examined this factor in the context of a specific commercial licensing use. “Transformative” is therefore a useful question, not a password. “Commercial” is likewise relevant but does not mean “unfair.”
2. Nature of the copyrighted work
This factor looks at what kind of work was used and its status. The statute names it but sets no categorical rule that ends the analysis. Publication status matters only as part of the whole weighing, as the 1992 sentence above makes clear.
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3. Amount and substantiality
Courts consider both how much was taken and how significant that portion is relative to the whole work. Section 107 contains no safe number of words, seconds, pages, or percentage. Rules of thumb you may have heard, such as “under 10%” or “30 seconds,” are not statutory thresholds, and classroom guidelines should not be treated as law.
4. Effect on the market
This factor asks whether the use harms the market for, or the value of, the original. The Copyright Office describes two considerations: whether the use displaces the original’s current market, and whether widespread similar use could cause substantial market harm. Not taking away direct sales therefore does not settle this factor by itself.
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How the Supreme Court frames the doctrine
Campbell, a case about a parody of a song, treats fair use as a context-sensitive inquiry, not a bright-line test. The Court said the doctrine “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”
In Google LLC v. Oracle America, Inc. (2021), the Court applied the statutory framework to a dispute over a software API. Warhol (2023) concerned an artist’s work licensed commercially. Each ruling turned on its specific facts, so neither should be read as a blanket rule for all software reuse, art, or commercial activity.
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Common questions, answered
How much can I use without permission?
There is no universal amount. A small excerpt can fail if it takes the “heart” of a work or substitutes for it in the market, while a larger portion may be defensible when the purpose and market effect support it. Quantity and importance are weighed together with the other three factors.
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Yes, it can. Commercial character is one part of the first factor and is weighed with everything else. It does not disqualify a use, but it can count against it.
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Is educational use automatically fair use?
No. The statute mentions teaching and nonprofit educational purposes, but they are not standalone guarantees. The source work, the amount copied, and the market effect still matter. Copying that replaces purchases of materials made for classrooms, for example, raises market concerns.
Can I use copyrighted material if I give credit?
Credit alone does not make a use fair. Section 107 does not list attribution as a factor. Giving credit may be good practice, but it does not substitute for the four-factor analysis.
Comparing two possible uses
If you are choosing between approaches, compare them on the same axes the law uses:
- The actual purpose and setting of each use, and whether it is commercial.
- The nature of the source work.
- How much copyrighted expression each approach takes, and how important that portion is.
- Likely effects on current or potential markets for the original.
- Whether a license or permission route is available. Official sources do not establish a universal preference for permission over fair use, but taking less, or asking, can reduce risk.
Limits of this explanation
This describes U.S. law only; other countries use different doctrines, such as “fair dealing.” The statute and the cases above are the core authorities, and later decisions or legislation can refine them. Whether any hypothetical use is fair cannot be determined without concrete facts about the work, the amount, the purpose, and the market. For a real decision, the U.S. Copyright Office’s Fair Use Index (summaries of past decisions) and a qualified attorney are the right next steps.
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