Fair use criteria

The Fair Use Checklist helps educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities fall within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act). Fair use is determined by a balanced application of four factors:

1. the purpose of the use
2. the nature of the work used
3. the amount and substantiality of the work used
4. the effect of the use upon the potential market for or value of the work used

Purpose

The purpose of this resource is to focus on the factual circumstances of your evaluation of fair use. The meaning and scope of fair use can vary by situation, and changing one or more facts may alter the analysis. This resource provides a way to document your analysis. Maintaining a record of your fair use analysis is important for future reference. Additionally, it will be helpful to date and include notes about your project as you work through this resource.

Final analysis

As you use this resource, you may have some criteria supporting fair use and some criteria opposing it. Ultimately, it is the cumulative weight of the factors in your analysis that will turn you toward or away from fair use. Consider the persuasiveness of each element as you evaluate whether or not a project falls within the terms of fair use. This is not meant to be an exhaustive list but instead serves to help you break down and evaluate your reasoning in your fair use analysis.

Favoring fair use

• Teaching (including multiple copies for classroom use)
• Research
• Scholarship
• Nonprofit educational institution
• Criticism
• Comment
• News reporting
• Transformative or productive use (changes the work for new utility)
• Restricted access (to students or other appropriate group)
• Parody

Opposing fair use

• Commercial activity
• Profiting from the use
• Entertainment
• Bad-faith behavior
• Denying credit to original author

Favoring fair use

• Published work
• Factual/informational and educational in nature
• Nonfiction work
• Important to educational objectives
• Non-consumable

Opposing fair use

• Unpublished work
• Highly creative work (i.e., art, music, novels, films, plays, poetry)
• Fiction
• Consumable work (i.e., workbook, test)

Favoring fair use

• Small portion of work
• Portion used is not central or significant to the entire work as a whole
• Amount taken is narrowly tailored to accomplish a demonstrated, legitimate purpose in the course curriculum

Opposing fair use

• Large portion or whole work used
• Portion used is central to or heart of the entire work
• Amount taken is more than necessary to accomplish a demonstrated, legitimate purpose in the course curriculum

Favoring fair use

• User owns lawfully purchased or acquired copy of original work
• One or few copies made
• No significant effect on the market or potential market for copyrighted work
• No similar product marketed by the copyright holder
• Lack of licensing mechanism

Opposing fair use

• Could replace sale of copyrighted work
• Significantly impairs market or potential market for copyrighted work or derivative
• Reasonably available licensing mechanism for use of copyrighted work
• Affordable permission available for using work
• Numerous copies made
• You made it accessible on the web or in another public forum
• Repeated or long-term use