In several key decisions, the courts have made clear that the key aspect of a successful claim to Fair Use is that the use being made of the copyrighted work is transformative: whether it "adds something new, with a further purpose or different character" (Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 579 (1994)) or whether it recontextualizes or repurposes the quoted material without creating newly protected works. For a thorough discussion of the transformative issue in education and the case law, see Peter Jaszi's "Fair Use and Education: The Way Forward" Law & Literature (Fall 2012): 1-13
|"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
—U.S. Constitution, Article 1, Section 8
US Copyright Law gives to the creators of works six exclusive rights. These rights may be transferred as a whole or in part, temporarily or permanently to another party (most often a publisher) through contract/license or sale.
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
These exclusive rights are limited by several sections of the law, but chiefly by Section 107 which in somewhat flexible langauge tries to strike a balance between the right of the copyright owner to profit from the expression of his ideas and from society at large to use the work for certain purposes without permission or payment. Note that criticism, comment, news reporting, scholarship and research are all mentioned in the law.
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.