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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 UseProbably Fair UseNOT 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 UseProbably Fair UseNOT 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Published Unpublished (Right of 1st publication Entertainment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.

Fair UseNOT 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 UseNOT 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.

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