Open Access

Pumping Iron: “Exercising Our Fair Use Muscle”

Flexing Our Fair Use Muscle!!

“Exercising Our Fair Use Muscle” Quote by Kyle K. Courtney.

Hello again and welcome back!

As mentioned previously, I am using this blog as a way to keep track of my thoughts and ideas on library related issues. This could include my experiences at conferences/workshops I’ve attended, my current work responsibilities or current events relating to librarianship. So without further adieu, this week’s blog post!

Some background info: FSU recently held The Copyright Institute which was a full day event that hosted a slew of different panels, presentations and speakers. The symposium was also available via live stream which was fantastic (and how I kept up with the day)! Sessions included topics on Fair Use, Institutional Copyright Support in Higher Education and Using Images in Scholarship. The panels and speakers for this event ranged from FSU faculty and librarians to librarians from other universities including the University of Florida and Simmons College in Boston. The key note speaker was Kyle K. Courtney who is currently the Copyright Advisor at Harvard’s Office for Scholarly Communication among many other talents and areas of scholarship.

I originally intended to give a recap of the Copyright Institute but instead decided to discuss the biggest topic from that day: Fair Use. Mr. Courtney gave an excellent keynote address on the topic of Fair Use, its history, present and future. As many of you may know, Fair Use is the legal principle that allows for unlicensed use of copyrighted works in certain situations (17 U.S. Code § 107). Section 107 of the Copyright Act establishes the principle of Fair Use and the factors that are used to determine that designation. In his talk, Mr. Courtney provided the history of Fair Use by regaling the tale of Justice Joseph Story and his ruling on Folsom v. Marsh (9 F. Cas. 342 (C.C.D. Mass. 1841)). Justice Story set the precedence back in 1841 (what?!) and it is from this ruling that we have the foundation of the factors for evaluating Fair Use.

The 4 Factors of Fair Use

  1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
  2. Nature of the copyrighted work
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. Effect of the use upon the potential market for or value of the copyrighted work

Read More here: 17 U.S. Code § 107


This precedence sits in our favor as Academics, Scholars, Researchers and Librarians. Without the establishment of Fair Use the majority of our work and research could not be accomplished. Critical analysis of scholarship could not be performed; transformations of texts, music and scientific studies to capture and discover new meanings would not exist. This is where our Fair Use muscle comes in: as Mr. Courtney stated in his speech, we need to “exercise our fair use muscle”. Fair Use is not a defense of scholarship, it is a right.

So if Fair Use is our right, why are we so afraid to use it? It can be intimidating to stick to our guns regarding Fair Use when it seems like DMCA notices are being issued habitually. It can seem even more frightening when large organizations such as Google and HathiTrust get bogged down with lawsuits over copyright and fair use. However, it is cases like these, where Fair Use is applied and upheld that should encourage us to invoke our right of Fair Use. We must be confident in our work and maybe even more importantly responsible with it. It can be tricky to navigate these waters but by having legitimate research and reasons for citing Fair Use in our work, we can continue to push forward and create progress in the Arts and Sciences.

So, let’s keep moving forward and keep exercising our Fair Use muscle!


Additional Notes/Readings/Citations:

  1. Courtney, Kyle K. “Fair Use: Past, Present, and Future of a Critical Legal Right.” Copyright Institute at FSU. Turnbull Conference Center, Tallahassee, FL. 26 Feb 2016. Keynote Address.
  2. Limits of Exclusive Rights: Fair Use, Pub. L. No. 102-492, 106 Stat. 3145, Codified as Amended at 17 U.S. Code § 107

If you would like to read more about Fair Use from the source, please visit There is also an index of all Fair Use cases in the U.S. that can be viewed and searched (which is awesome!).

Also, please check out Brandon Butler’s guest blog post on Harvard’s Copyright Blog from Fair Use Week 2016. In his post he talks about how to overcome the trepidation we might feel when worrying about Fair Use with this simple epigram: “Use fairly. Not too much. Have reasons.”.