12-Fair Use
3. Evaluating Your Case for Fair Use
Copyright law lacks specificity, so it can be difficult to determine whether or not a particular use may qualify as fair use. Fortunately, there are a number of useful tools available online to help you consider the four fair use factors as they apply to your intended use.
A Fair Use Checklist can be very helpful for conducting a fair use analysis. The checklist indicates various criteria for each factor which have been found in a court of law to favor or oppose a finding of fair use. It is highly recommended that you use a fair use checklist to evaluate the strength of your argument for fair use.
Movie: Follow the Four Factors of Fair Use
Watch this video to see a fair use analysis using a fair use checklist.
In a fair use analysis, you consider each of the four factors in light of your proposed use and determine whether your use is favoring or opposing fair use for that factor. You then weigh all four factors together. You cannot rely on a numerical tallying of criteria in favor and opposing fair use in order to make a determination. You must consider all four factors holistically and determine if, taken as a whole, they favor or oppose fair use, and to what extent (e.g., strongly favoring fair use, slightly favoring, etc.).
- If, overall, your use favors fair use, then you may decide to proceed.
- If your use instead opposes fair use, you should reassess your use and determine if you can make any changes that could strengthen your case for fair use.
There are other tools in addition to the checklist that can help you conduct a fair use analysis. The American Library Association has developed a tool called the Fair Use Evaluator.
Activity: Fair Use Criteria
Visit the Fair Use Checklist and review the criteria for each of the four factors.
Activity: Fair Use or Not Fair Use?
Tips for Best Practice
While it is important to perform a fair use evaluation for each and every use of copyrighted material, there are some general rules that can often help you to strengthen a fair use claim.
Below are a few tips to consider when relying on the fair use exception in order to use copyrighted works in your endeavors.
- Use only lawfully acquired copyrighted works – To be able to claim fair use you must have used a legal copy of the original work.
- Acknowledge all of your sources with a bibliographic citation – Giving proper credit to the original creator demonstrates good faith and may help strengthen your fair use case.
- Use only the amount of the original work that you need to accomplish your goal – Since the amount of the original work that is used is one of the fair use factors, it is always important to only use what you need and not add extra material.
- Restrict the audience and/or make only the number of copies that you need – The less you copy and share the parts of the original work, the less effect you have on the market for it.
- Use Creative Commons licensed or public domain works – If you use works that expressly allow you to use them or have no copyright protection, you do not need to rely on fair use and can be more confident that your use is legal.
- Use works that you created – If you created it, you own the copyright, with the exception of works made for hire. (When you create things for your job, typically your employer owns the copyright.)
If you are in doubt about your fair use claim, either reassess and make changes to your proposed use in order to make a stronger claim or ask for permission to use the copyrighted material – It is much easier to make changes or ask for permission before you use copyrighted material than to get hit with an infringement claim and have to make changes or face a law suit after your use.
Further Reading on Fair Use
A number of groups have developed Codes of Best Practices in Fair Use for different types of activities. These codes propose examples of fair use within specific communities of practice. Below are links to some of these Codes of Best Practices.
- Code of Best Practices in Fair Use for Online Video
- Code of Best Practices in Fair Use for Poetry
- Code of Best Practices in Fair Use for OpenCourseWare
- Documentary Filmmakers’ Statement of Best Practices in Fair Use
- Association of Research Libraries Code of Best Practices in Fair Use for Academic and Research Libraries
