Copyright

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. 

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

• Fill in the blanks about the copyrighted work and your proposed use of it.
• Check the boxes that apply to your use (many uses will require that you check more than one box under each category).
• Some checked boxes will favor a finding of fair use and others may oppose a finding of fair use.
• The “weight” of the checked factors favors or opposes fair use. Because you are most familiar with your proposed use of the copyrighted work, you are probably best positioned to make that determination.
• Once you have complete the checklist, you might wish to keep a copy of the completed checklist in your files for future reference. You can use your browser's print button to print a copy.

Fair Use Checklist

• Fill in the blanks about the copyrighted work and your proposed use of it.
• Check the boxes that apply to your use (many uses will require that you check more than one box under each category).
• Some checked boxes will favor a finding of fair use and others may oppose a finding of fair use.
• The “weight” of the checked factors favors or opposes fair use. Because you are most familiar with your proposed use of the copyrighted work, you are probably best positioned to make that determination.
• Once you have completed the checklist, you might wish to keep a copy of the completed checklist in your files for future reference.

First Factor: Purpose

Favoring Fair Use

• Teaching (including multiple copies for classroom use)
• Research
• Scholarship
• Use by nonprofit educational institution
• Criticism
• Comment
• News reporting
• Transformative or productive use (changes the work for a new use)
• Restricted access (password protected access for students or other restricted group)
• Parody

Opposing Fair Use

• Commercial activity
• Profiting or charging for the use
• Entertainment
• Facts that show you were acting in bad faith or with knowledge of possible wrongdoing
• Not giving attribution to the original author
• Use creates a derivative work of the original (full translation, adaptation, abridged version, etc.)

Second Factor: Nature

Favoring Fair Use

• Published work
• Factual work
• Important to favored educational objectives

Opposing Fair Use

• Unpublished work
• Creative work (art, music, poetry, novels, films, plays)
• Fiction
• Consumable work (intended to be used only once, e.g., a workbook)
• Work created expressly for the purpose of the proposed use (e.g., case studies)

Third Factor: Amount

Favoring Fair Use

• Small quantity of the work used
• Portion used is not central or significant to the whole work
• Amount is appropriate for favored educational objectives

Opposing Fair Use

• Large portion of the work used
• Portion used is central to the entire work, or the “heart” of the work

Fourth Factor: Effect

Favoring Fair Use

• Users owns lawfully acquired or purchased copy of the original work
• Number of copies made (or number of users to whom made accessible) is one or few
• No significant effect on the market or potential market for copyrighted work
• No similar product is marketed by the copyright holder
• Lack of licensing or permission mechanism
• The copyright holder cannot be identified or cannot be found after a reasonable search (or does not respond to requests for permission)

Opposing Fair Use

• Use could replace a sale of copyrighted work
• Use would significantly impair the market or potential market for the copyrighted work
• Reasonably available licensing mechanism exists for the copyrighted work
• Reasonable available and affordable permission is available for using the work
• You make the work accessible on the Web or in another public forum
• Repeated or long term use