Fair Use Checklist

Introduction to the Checklist

The Fair Use Checklist and variations on it have been widely used for many years to help educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act).Fair use is determined by a balanced application of four factors set forth in the statute: (1) the purpose of the use; (2) the nature of the work used; (3) the amount and substantiality of the work used; and (4) the effect of the use upon the potential market for or value of the work used.  Those factors form the structure of this checklist.  Congress and courts have offered some insights into the specific meaning of the factors, and those interpretations are reflected in the details of this form.

Benefits of the Checklist

A proper use of this checklist should serve two purposes.  First, it should help you to focus on factual circumstances that are important in your evaluation of fair use.  The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis.  Second, the checklist can provide an important mechanism to document your decision-making process.  Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project.  Keep completed checklists on file for future reference.

The Checklist as Roadmap

As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns.  Some checked boxes will favor fair use and others may oppose fair use.  A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use.  This is not an exercise in simply checking and counting boxes.  Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use.  Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.

Used under a Creative Commons BY-NC license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director.

Fair Use Checklist

Name:                                                                                                                                     

Institution:                                                                                                                               

Project:                                                                                                                                    

Date:                                                                                                                                       

Prepared by:                                                                                                                             

Purpose:

Favoring Fair Use

 Teaching (including multiple copies for Commercial activity classroom use)

 Research

 Scholarship

 Nonprofit educational institution

 Criticism

 Comment

 News reporting

 Transformative or productive use (changes the work for new utility)

 Restricted access (to students or other appropriate group)

 Parody

 

Opposing Fair Use

 Commercial activity 

 Profiting from the use

 Entertainment

 Bad-faith behavior

 Denying credit to original author 

 

Amount:

 

Favoring Fair Use

  Small Quantity

  Portion used is not central or significant to “the entire work”

  Amount is appropriate for favored educational purpose

 

Opposing Fair Use

  Large portion or whole work used

  Portion used is central to or “heart of work”

 

Effect:

 

Favoring Fair Use

  User owns lawfully purchased or acquired copy or original work

  One or few copies made

  No significant effect on the market or potential market for copyrighted work

  No similar product marketed by the copyright holder

  Lack of licensing mechanism

 

Opposing Fair Use

  Could replace sale of copyrighted work

  Significantly impairs market or potential market for copyrighted work or derivative

  Reasonably available licensing mechanism for use of the copyrighted work

  Affordable permission available for using work

  Numerous copies made

  You made it accessible on the Web or in other public forum

  Repeated or long-term use

 

Nature:

     

Favoring Fair Use

 Published work

 Factual or nonfiction based

 Important to favored educational objectives

 

Opposing Fair Use

 Unpublished work

 Highly creative work (art, music, novels, films, plays)

 Fiction

 

[end of fair use checklist]