Fair Use Checklist
Copyright owners have the exclusive right to authorize certain uses of their works, such as making copies, distributing copies, and displaying or performing the work in public. The law does, however, acknowledge that some uses of copyrighted works may not be an infringement. This is known as “fair use”. It is vital to note that use for educational purposes is not necessarily considered “fair use”. Instead, the law delineates four factors that should be considered when determining whether any particular use is permissible. These four factors are:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
This checklist is intended to serve as a decision-making guide for anyone who is trying to determine whether a particular use is fair. Note that no single element is determinative. Rather, each of the four factors must be analyzed and considered. In general, if more than half of the factors favor fair use, then the use is probably fair. If less than half favor fair use, then permission should probably be sought. Definitions of terms and additional explanatory information are contained in the endnotes.
Examples of applying the Fair Use Checklist to various scenarios involving potential copyright infringement can be viewed on our video tutorials page.
- Factor 1: Purpose of the Use
Favoring fair use Opposing fair use Teaching Use within commercial activity Research and scholarship Profiting from the use Criticism, comment, and news reporting Use for entertainment purposes4 Use within a non-profit educational institution Bad-faith effort5 Restricted access1 Denying credit to original author Parody2 Transformative use3
- Factor 2: Nature of the Copyrighted Work
Favoring fair use Opposing fair use Published work Unpublished work Factual or non-fiction Highly creative work6 Important to favored educational objectives Consumable work7
- Factor 3: Amount and Substantiality of Portion Used
Favoring fair use Opposing fair use Small quantity of work used Large portion or entire work used8 Portion used is not central or significant to the entire work as a whole Portion used is central or the “heart” of the work9 Amount used is appropriate for favored educational purpose10 Amount used includes more than necessary for educational purpose Access is limited to students enrolled in course or other appropriate users11 Access is not limited
- Factor 4: Effect of the Use Upon the Potential Market
Favoring fair use Opposing fair use No significant effect on the market or potential market for the copyrighted work Significantly impairs market or potential market for copyrighted work or derivative12 Could replace sale of copyrighted work13 Lack of licensing mechanism Reasonably available licensing mechanism for use copyrighted material Affordable permission available for using work One or few copies made and distributed Numerous copies made and/or distributed14 Restricted access (limited to students in class or other appropriate group) Made publicly available on the Web or in other public forum One time use, spontaneous use (no time to obtain permission)15 Repeated or long-term use User owns lawfully acquired or purchased copy of original work User does not own lawfully acquired or purchased copy of work No similar product marketed by the copyright holder
1 This could include restricting access to students enrolled in a specific class, as with Sakai, or restricting access to members of the Loyola community through IP authentication.
2 A parody is a work that ridicules another work, its subject, or its author, by imitating it in a comic way. Generally, judges have permitted fairly extensive use in parodies, in order to make clear what the original work was.
3 Transformative use is one in which the original work is used for some purpose other than that which was originally intended.
4 Even within a non-profit educational setting, use of a work for entertainment generally does not favor fair use. An example might be showing a feature film in class solely for the enjoyment of the students, rather than as part of the educational purpose of the course.
5 Bad faith can include a number of willfully unethical behaviors, such as using an illegally obtained copy of a work or using a work with full knowledge that it was not permissible.
6 Generally, the more “imaginative” a work is, the more protected it is. Works that are largely factual, such as non-fiction texts or instructional manuals, are considered less creative, while fiction, art, music, and films are considered more creative.
7 Works that are meant to be “consumed” – used up and discarded or replaced – factor against fair use. Examples would be workbooks, quizzes, and tests.
8 Quantity is best evaluated relative to the length of the entire original work and the amount needed to serve a proper purpose. Although there are no numerical or percentage limits, the larger the amount of a work one uses, the less likely it will be considered fair use.
9 Sometimes, even if the quantity taken is insubstantial, this factor may weigh against fair use if the portion is qualitatively significant and can be justly characterized as “the heart of the material.”
10 Another important consideration is whether the amount used is appropriate for a favored educational purpose. For example, if a professor wants to illustrate the writing style of a contemporary author in a creative writing course, the excerpt should be long enough to provide an adequate illustration, but no longer.
11 This could include restricting access to students enrolled in a specific class, or restricting access to members of the Loyola community through IP authentication.
12Another important fair use factor is whether your use deprives the copyright owner of income or undermines the potential market for the copyrighted work. Depriving a copyright owner of income is very likely to trigger a lawsuit, even if you are not competing directly with the original work.
13 For example, a professor cannot make copies of “consumable” material such as workbooks, exercises, standardized tests, test booklets and answer sheets, that would as a result, replace the sale of the copyrighted work.
14 For example, if a music professor copies and distributes 30 copies of an entire song, the market effect will likely be much greater because there will be less likelihood that students will be required to buy it themselves.
15 The idea to make copies must come from the teacher him/herself, and the idea to make copies and their actual classroom use must be so close together in time that it would be unreasonable to expect a timely reply to a request for permission from the publisher or copyright owner.