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Creative Commons and Copyright

Determining Fair Use

Fair Use

Source: U.S. Copyright Office

Limitations on exclusive rights

The fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Fair Use Checklist from the Copyright Advisory Office of Columbia 

Purpose

Favoring Fair Use

  • Teaching (including multiple copies for classroom use)
  • Research
  • Scholarship
  • Nonprofit
  • Criticism
  • Comment
  • News reporting
  • Transformative or productive use (changes the work for new utility)
  • Restricted access (to students or other appropriate group)
  • Parody

Nature

Favoring Fair Use

  • Published work
  • Factual or nonfiction based
  • Important to favored educational objectives

Amount

Favoring Fair Use

  • Small quantity
  • Portion used is not central or significant to entire work
  • Amount is appropriate for favored educational purpose

Effect

Favoring Fair Use

  • User owns lawfully purchased or acquired copy of 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

  • Commercial activity
  • Profiting from the use
  • Entertainment
  • Bad-faith behavior
  • Denying credit to original author

 

 

 

 

​Opposing Fair Use

  • Unpublished work
  • Highly creative work (art, novels, films, plays)
  • Fiction

 

 

Opposing Fair Use

  • Large portion or whole work used

     

 

Opposing Fair Use

  • Could replace sale of copyrighted work
  • Significantly impair market or potential market for copyrighted work or derivative
  • Reasonably available licensing mechanism for use of the copyrighted work
  • Numerous copies made
  • You made it accessible on the Web or in other public forum
  • Repeated or long-term use
  • Portion used is central to or “heart of the work.”
PDF version of the Fair Use Checklist