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- Use of published materials is favored over unpublished works.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.