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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 Use
  • Nonprofit
  • Teaching
  • Scholarship/Research
  • Personal
Probably Fair Use
  • Criticism
  • Commentary
  • Parody
  • Restricted Access
  • News Reporting
  • Otherwise Transformative Use
NOT Fair Use
  • Commercial
  • Entertainment
  • Bad Faith Behavior
  • Profit
  • Lack of Attribution

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
  • Factual
  • Published
Probably Fair Use
  • Mixture of Factual and Imaginative
  • Unpublished (Right of First Publication
NOT Fair Use
  • Creative
  • 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
  • Small Amount
  • Amount Is Appropriate for a Favored Educational Use
NOT Fair Use
  • Large Portion or Whole Work
  • 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
  • First 3 Factors Tending Toward Fair Use
  • User Owns Lawfully Acquired Copy of the Work
  • No Significant Effect on the Market or Potential Market for the Work
  • No Similar Product Marketed by the Copyright Owner
  • Copyright Owner Unidentifiable
NOT Fair Use
  • Replaces Sale of Copyrighted Work
  • Significantly Impairs Market or Potential Market for the Work
  • Numerous Copies Made of the Work
  • Use Makes It Publicly Accessible on the Internet

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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