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.

1. Purpose of the Use

Due to the nature of the work we do at Northwest, factor one will most often favor fair use.  However, be wary of straying into uses that involve entertainment (e.g. showing a film for fun) or commercial activity (e.g. re-selling a pack of readings).

Favoring Fair Use
Opposing Fair Use

2. Nature of the Work

Fiction and artistic works generally enjoy a higher level of copyright protection.  Note that this does rule out their use where other factors strongly favor fair use (e.g. showing movies in a film class).

Favoring Fair Use
Opposing Fair Use

3. Amount Used

Remember that amount used is relative to the length of the work as whole. One chapter is a small portion of an entire book, but a journal article – even though it may be about the same length as a book chapter – is considered the ENTIRE work.

Amount is also relative to what is required to meet your educational objectives.  Use the smallest amount of the material that you can.  Note that supplemental readings are less likely to be considered fair use than required readings.

Favoring Fair Use
Opposing Fair Use

4. Effect on the Market for the Work

In general, do not do anything that impairs the publishers ability to profit from their products.  For example, reproducing several chapters from a textbook in order to avoid purchasing the book is unlikely to be considered fair use.  There is a body of opinion which suggests that if licensing is available through Copyright.com you should purchase reproduction rights.

Assuming that no licensing mechanism is available, out-of-print books are likely to favor fair use because publishers do not profit from used book sales.

Favoring Fair Use
Opposing Fair Use

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