Answered By: Gabe Gossett
Last Updated: Jan 14, 2016     Views: 148

The four factors to be considered in determining whether a use is fair use are:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Educational use (teaching, scholarship and research) is more likely to be considered fair use than commercial purposes.

Are you using the work and transforming it into something else? Are you adding new information and new understanding? Scholarship and research where the work is the subject of review and commentary might be considered transformative in nature.

2. The nature of the copyrighted work;

Factual information weighs in favor of fair use while fictional does not. Published works would be more favorably considered fair use than unpublished works where the author has the right to control the first expression of the work.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

Using a small portion of a work may still get you into trouble if what you are using is the heart of the work or the most memorable portion. Using a large portion or all of a work is not considered fair use.

4. The effect of the use upon the potential market for or value of the copyrighted work.

Is your use depriving a person of income or robbing a publisher of a sale? Are you making numerous copies, repeating the use or plan long term use of the item? Those choices may not be considered fair use.

Have you made the material available on the Web? An unlimited audience with no restriction is not considered fair use.

All 4 factors must be considered in total before a conclusion of fair use can be reached.

The courts look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. Courts can consider other factors as well.

The Fair Use Checklist is a tool created to aid in your determination of appropriate use.

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