Fair Use Checklist

Use of copyrighted materials by people who do not own rights to the materials depends on Fair Use doctrine.  Fair Use doctrine recognizes that certain uses of copyrighted material are in the public interest.  These uses include teaching, research and criticism.  Unfortunately, there are no hard and fast rules for what constitutes fair use.  Each use of copyrighted materials must be judged on its own merit using the following four factors:

  1. The purpose of the use: is the use commercial or non-profit?
  2. The nature of the material: is it factual or highly creative?
  3. The amount of the work used.
  4. The effect of the use: does the use of copyrighted material impact the market for the original?

Use the following fair use checklist to assist in weighing the factors.  Remember, you can not simply add checkboxes to arrive at a number.  Some factors may be judged to be neutral to the case for fair use.

Purpose of the Use

Favoring Fair Use

Teaching (including multiple copies for classroom use)
Research
Scholarship
Non-profit educational institution
Criticism
News reporting
Transformative or productive use (changes the work for new utility)
Restricted access
Parody

Opposing Fair use

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

Nature of the Work

Favoring Fair Use

Published work
Factual or non-fiction based
Important to favored educational objectives

Opposing Fair use

Unpublished work
Highly creative work (art, music, novels, films, plays)
Fiction

Amount Used

Favoring Fair Use

Small quantity
Portion used is not central or significant to the entire work
Amount is appropriate for favored educational purpose

Opposing Fair use

Large portion of the whole work used
Portion used is central to or “heart of the work”

Effect on the Market for the Work

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 the copyrighted work
Affordable permission available for using work
Numerous copies made
You made it accessible on the Web or in other public forum
Repeated or long-term use

Based on the Fair Use Checklist by Kenneth Crews, Columbia University.