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• Actual extract in US Code, Title 17, section 107
• Additional precedent (‘transformative’)

• Interpreting the law on fair use


Actual extract from US Code

[start extract]

§ 107. Limitations on exclusive rights: Fair use (go to original source)

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

[end extract]

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‘Transformative’

This is an additional factor, established by precedent (see list of cases using it), that helps determine if citation can be considered fair use. This criterion examines

‘the degree of transformation accomplished by the new work by determining whether the new work has a different purpose or different character than that of the original copyrighted work. For example, does a new work accomplish a transformative purpose by adding something entirely new to the copyrighted work or does the new work only supplant the original copyrighted work?’

‘What constitutes a “transformative work” is not subject to exacting definition. However, as a general rule, if the new work “merely supersedes the objects of the original creation,” it is not transformative, but if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message,” it is transformative.’

Interpretation

Five criteria are relevant to Fair Use: four are listed in §107, Title 17 of the US code and one is covered by the ‘Transformative’ factor. You can check the validity of your fair-use claims in relation to those five criteria by answering the following questions.

  1. What is the nature and character of use of the citation you make of the other work?
    Is YOUR work scholarly/educational and used for non-profit, non-commercial ends?
    Answering YES is essential.
  2. Is your work ‘creative’ or ‘factual’, ‘informative’ or ‘entertaining’?
    These are very dubious pairs of conceptual opposites! However, the more you can prove your work is factual ‘rather than’ creative, informative ‘rather than’ entertaining (whatever those adjectives may mean!), the better.
  3. How much of the work is taken?
    The less you take from the quoted work in both absolute and proportional terms, the better. The less of your work citing the quoted work (in both absolute and proportional terms), the better.
  4. Does your work deprive the plaintiff of any revenue from the copyrighted work you quote?
    Most probably not. It’s much more likely your work advertises the quoted work.
  5. Is your work transformative? Does your work just repackage the quoted work or is it fundamentally different from the original it quotes?
    The more ‘transformative’ and different your work, the better!

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