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Fair Use

Fair Use is an exemption to copyright law that allows the use of copyrighted works without permission or payment of fees in order to encourage teaching, learning and scholarship. However, a fair use determination must be made for each intended use, and the answer may still be vague or murky. The only way to get a definitive answer on fair use is for a case to go to court and receive a ruling from a judge.  However, this very rarely happens.

Fair Use Checklist

This checklist will help you weigh each of the fair use principles and determine for yourself whether your proposed use is a fair use. It also documents the consideration and diligence you gave to the intended use.  

Principles of Fair Use

Purpose or character of the use

  • Nonprofit or educational uses are favored over commercial uses
  • "Transformative" works that create something new are favored over uses that are mere reproductions.

Nature of the work being used

  • Courts tend to give greater protection to creative works (art, music, poetry, feature films, etc.) than to nonfiction.
  • Use of published materials is favored over unpublished works.

Amount of the work being used, and its substantiality in relation to the whole

  • The more of a work you use, the less likely it will be considered fair use.
  • Even a small portion of work may be excessive if it represents the essential or key element of the work.

Effect of the intended use on the market

  • If the work could have been purchased or licensed for use,  it is not likely fair use.
  • It is not fair use if use deprives the copyright owner of income or a potential market.