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You should always give credit, but thanks to the fair use doctrine, you don’t always need to seek permission or pay for it.

Fair use

Specific legal exceptions that let you use copyrighted material without having to ask for permission or pay any fees.

Cover for "Weird Al" Yankovic's single, The Saga Begins. The cover shows Yankovic dressed like young Anakin Skywalker. — Cover for "Weird Al" Yankovic's single, *The Saga Begins,* which is a parody of both *Star Wars* and Don McLean's song, "American Pie." (The Saga Begins. (2024, June 12). In *Wikipedia*. https://en.wikipedia.org/wiki/The_Saga_Begins)

An example of fair use is when an artist or musician reuses or references someone else’s creative work in something they create, like the parody songs of "Weird Al" Yankovic.

Another example of fair use is when you, as a researcher, reuse copyrighted graphs, tables, and other figures from someone else's research paper.

This kind of reuse is one of the main reasons fair use exists: to make it easier for copyrighted material to be used in universities and other educational settings where these materials are taught, shared as course readings, and used for research.

Unfortunately, this leads to a common misconception that everything is fair use if the material is used for an educational purpose.

Four fair use factors

So how do you know if you need to ask for permission or if you're covered by fair use?

You analyze four factors:

The purpose and character of the use,
The nature of the copyrighted work being used,
The amount and substantiality of the work being used, and
The use's effect on the original work's value.

Fair use is determined by considering all four factors.

In one high-profile example, graphic designer Shepard Fairey based his well-known “Hope” poster on a photograph of Barack Obama taken by an Associated Press (AP) photographer named Mannie García.

García's photo of Barack Obama on the left and Fairey's "Hope" poster on the right. — García's photo on the left and Fairey's poster on the right. You can see how much of the original photograph's composition was used for the poster. (Image credits: Mannie García/Associated Press and Shepard Fairey)

Fairey did not acknowledge García as his source, nor did he secure permission from García to use the photo.

When this came to light, Fairey tried to defend his work as fair use. The AP disagreed and took Fairey to court, where a judge decided Fairey’s poster violated copyright law and was not fair use.

Click the tabs to learn more about the four factors and how Fairly's work failed to meet them.

Purpose & character of the use

This factor considers what you’ll be doing with the original work you use. Fair use favors uses that:

transform a work instead of using it as-is,
radically and significantly change a work from the original,
provide a commentary, critique, or parody of the original,
add new meaning to a work through its use, or
facilitate teaching or learning.

In the case of the “Hope” poster, the graphic designer attempted to transform the photograph by color-blocking it; he did not significantly transform the photo from the original.

Since Fairey did not cite or acknowledge the original photograph, it would be difficult to consider Fairey’s work as a commentary or critique of the original.

Nature of the copyrighted work

This factor considers the purpose and type of the original work you want to use. Specifically, fair use favors uses that:

include factual material, such as biographies or technical articles, rather than creative works such as fiction writing, poetry, or music; and
reuse published works that have already been shared, rather than unpublished works, which have not yet been shared.

Using someone else’s artistic work, such as García’s photograph, is less likely to be considered fair use.

Copyright law was created to protect authors and artists so that they would create more. García’s photograph was his own creative expression; another reason why the judge determined that Fairey’s derivative poster was not fair use.

Amount and substantiality

This factor considers the amount of the original work you are reusing, and how substantial that portion is. Fair use supports using a small or less important portion of a work, favoring uses that include:

only a part, not all of the original work, or
a nonessential piece of the original work, rather than the “most important” or “best” piece.

Fairey’s poster used nearly all of García’s photo. While the poster omits the flag in the background, the most substantial part, Barack Obama’s face, was included in its entirety. This does not support the argument that his poster was fair use.

Use's effect on the original work's value

This factor considers whether your use could impact the sale and perception of the original work. Fair use favors uses that:

do not negatively impact the market for the original work, such as how scanning a workbook replaces the need to buy the original workbook, and
are not easily mistaken as the original work, and do not otherwise overshadow or replace the original.

The photograph in this example was García’s original creation. However, Fairey’s derivative work became so famous that most people would never know the poster was based on someone else’s work. You could argue that García’s photograph and creative vision were devalued.

Key takeaways

Fair use allows academics to reuse, repost, or revise content without asking or paying for permission with the consideration of four factors:

transform a work instead of using it as-is,
radically and significantly change a work from the original,
provide a commentary, critique, or parody of the original,
add new meaning to a work through its use, or
facilitate teaching or learning.