Fair Use
This guide should not be construed as a substitute for legal advice, nor is this resource comprehensive on the subject of copyright.Following are four factors commonly used to determine fair use:
What is the purpose of the proposed use?
| Fair Use | Probably Fair Use | NOT Fair Use |
|---|---|---|
| Nonprofit | Criticism | Commercial |
| Teaching | Commentary | Entertainment |
| Scholarship/Research | Parody | Bad Faith Behavior |
| Personal | Restricted Access | Profit |
| News Reporting | Lack Of Attribution | |
| Otherwise Transformative Use |
Uses on the left tend to tip the balance in favor of fair use. Uses on the right tend to tip the balance in favor of seeking permission from the copyright holder. The uses in the middle, if they apply, are favorable to fair use: they add weight to the tipping force of uses on the left.
What is the nature of the copyright work to be used?
| Fair Use | Probably Fair Use | NOT Fair Use |
|---|---|---|
| Factual | Mixture of Factual and Imaginative | Creative |
| Published | Unpublished (Right of 1st publication | Entertainment |
| Consumable Materials (Workbooks, Answer Sheets) |
Again, uses on the left tend to tip the balance in favor of fair use while uses on the right favor seeking permission. In this case, uses in the middle have little effect on the balance.
- How much of the copyrighted work will be used?
| Fair Use | NOT Fair Use |
|---|---|
| Small Amount | Large Portion Or Whole Work |
| Amount Is Appropriate for a Favored Educational Use | Portion Used Is Qualitatively Substantial |
The amount of material should be measured both quantitatively and qualitatively. Quantity should be evaluated relative to the length of the entire work and the amount needed. The reproduction of an entire work weighs against fair use. A reproduction that is relatively small, but still uses the "heart" of the work will weigh against fair use.
What is the effect on the market or potential market for the copyrighted work?
| Fair Use | NOT Fair Use |
|---|---|
| First 3 Factors Tending Toward Fair Use | Replaces Sale of Copyrighted Work |
| User Owns Lawfully Acquired Copy of the Work | Significantly Impairs Market or Potential Market for the Work |
| No Significant Effect on the Market or Potential Market for the Work | Numerous Copies Made of the Work |
| No Similar Product Marketed by the Copyright Owner | Use Makes It Publicly Accessible on the Internet |
| Copyright Owner Unidentifiable |
Reproduction that substitutes for purchase of the original weighs heavily against fair use.This factor is closely linked to the other factors.