Skip to main content

Hamersly Library

.Copyright and Fair Use: Completing the Fair Use Checklist

LEGAL DISCLAIMER: THE CONTENT ON THIS WEBSITE IS INTENDED FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE.

Completing the Fair Use Checklist

Fair use is very context-dependent, so only you can determine if your use is fair.

The fair use checklist can help you organize your thoughts around the issues, although it does NOT tell you whether a proposed use is fair or not, and does NOT provide any kind of legal advice. It simply helps you structure your own reflections about the fair use factors, and provides a record that you did consider relevant issues.

Remember that no single factor is decisive of fair use. As you use the checklist and apply it to your situation, 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.

 

Based on and used under a Creative Commons BY license from the University of Minnesota University Libraries.

Considerations for Factor 1: The Purpose and Character of the Use

Favoring Fair Use

TRANSFORMATIVE OR PRODUCTIVE USE: Check this box if your use transforms the copyrighted work into something new, uses the work for a different purpose, or adds value to a work. Transformative uses include, but are not limited to:

1. Quotations incorporated into a paper
2. Pieces of a work (or works) included in criticism or comment
3. Pieces of a work (or works) mixed into a multimedia product for your own teaching needs

4. Showing video clips to illustrate an idea
5. Placing works in an historical context
6. Showing a movie for purposes of exploring the narrative, artistic, cultural, economic, and/or political implications of the film

EDUCATIONAL: Check this box if you plan to use the copyrighted work for one of the listed purposes.

NONPROFIT USE: Check this box if your use does not commercially exploit the copyrighted work.


Disfavoring Fair Use

NON-TRANSFORMATIVE, VERBATIM/EXACT COPY: Check this box if you are making an exact copy of a work and using it for the same purpose as it was originally intended. Non-transformative uses include, but are not limited to:

1. Textbook copying
2. Workbook copying
3. Ripping files from videos produced for the educational
market

COMMERCIAL, ENTERTAINMENT, OR OTHER: Check this box if your use commercially exploits the work, is for entertainment purposes, or uses the work for a purpose different from those listed in the checklist.

THE ORIGINAL AUTHOR IS NOT CREDITED IN THE MATERIAL: Crediting an author is part of the scholarly process and demonstrates good faith behavior when using copyrighted works (something courts often take into consideration when making legal decisions regarding fair use). We recommend you always credit the author.

PROFIT-GENERATING USE: Check this box if your use of the copyrighted work ultimately results in a profit-generating arrangement.

Considerations for Factor 2: Nature of the Use

Favoring Fair Use

FACTUAL, NONFICTION, NEWS: Check this box if the copyrighted work you plan to use is factual in nature, a nonfiction work, or a news item.

PUBLISHED WORK: Check this box if the copyrighted work is published or publicly available.

 

Disfavoring Fair Use

HIGHLY CREATIVE WORK (ART, MUSIC, FICTION): Check this box if the copyrighted material is creative in nature. Examples include, but are not limited to, literature, poetry, sculpture, paintings, and music.

UNPUBLISHED WORK: Check this box if the copyrighted work has not been published or made publicly available.

CONSUMABLE WORKS (WORKBOOKS, TESTS): Check this box if the copyrighted material is intended for one-time use. Consumable works are often intended to be written in or "consumed" by users.

Considerations for Factor 3: Amount and Substantiality of the Use

Favoring Fair Use

AMOUNT IS APPROPRIATE TO TRANSFORMATIVE PURPOSE: Check this box if the amount used is no more than necessary for the transformational purpose. This could entail cropping a photo, providing a movie clip rather than the entire movie, or using only a portion of a text.

SMALL PERCENTAGE OF NON-TRANSFORMATIVE PURPOSE USED: Check this box if your use is non-transformative (see Factor #1), and you will use only a very small percentage of the original.

PORTION USED IS NOT CENTRAL TO PIECE AS A WHOLE: Check this box if the portion you will use is not the "heart" of the work.

 

Disfavoring Fair Use

INCLUDES MORE THAN NECESSARY TO ACCOMPLISH THE TRANSFORMATIVE PURPOSE: Check this box if you will use more than you need for your transformative purpose. Examples include showing an entire film to a class to illustrate portrayal of gender roles, when a short clip will suffice, or photocopying an entire book chapter rather than just the chart you're referencing.

LARGE OR ENTIRE PORTION USED FOR A NON-TRANSFORMATIVE PURPOSE: Check this box if your use is non-transformative and you're using more than a small percentage of the work. There is no "bright line" rule to tell you how much you can or can't use, but you should be very cautious about using materials for the same purpose for which they were originally intended.

PORTION USED IS CENTRAL OR THE "HEART" OF THE WORK: Check this box if you're using the central issue, idea or "heart" of the work. Many educational uses require the central idea or "heart" of the work, but checking this box should not negate a favorable fair use decision. You will make your determination based on the totality of your answers.

Considerations for Factor 4: Effect of the Use on the Market

Favoring Fair Use

NO SIGNIFICANT EFFECT ON THE MARKET OR POTENTIAL MARKET FOR THE COPYRIGHTED WORK: Check this box if your use will not deny the copyright holder the financial gain they're entitled to. If the work is available for purchase for the educational market you are affecting the market. Generally, using a work for a purpose other than the original intent, without payment, does NOT affect the market for the work.

ONE OR FEW COPIES MADE AND/OR DISTRIBUTED: Check this box if you will only make and/or distribute a few copies of the copyrighted

NO LONGER IN PRINT; ABSENCE OF LICENSING MECHANISM: Check this box if the copyrighted work is no longer in print or you cannot purchase a license for the use of the copyrighted work.

RESTRICTED ACCESS (LIMITED TO STUDENTS IN A CLASS OR OTHER APPROPRIATE GROUP): Check this box if the copyrighted work will be located in a content management system such as Blackboard and students must log in with a password to access the material.

 

Disfavoring Fair Use

CUMULATIVE EFFECT OF COPYING WOULD BE TO SUBSTITUE FOR THE PURCHASE OF THE COPYRIGHTED WORK: Check this box if your use ultimately substitutes for the purchase of the work. For example, copying individual chapters of a book over a period of time, which eventually culminates in copying an entire work (or a substantial portion of a work) is not a fair use.

NUMEROUS COPIES MADE AND/OR DISTRIBUTED: Check this box if you will make and/or distribute numerous copies of a work OUTSIDE THE CLASSROOM WALLS. The Fair Use statue allows for multiple copies for teaching purposes.

REASONABLE AVAILABLE LICENSING MECHANISM FOR OBTAINING PERMISSION TO USE THE COPYRIGHTED WORK CURRENTLY AVAILABLE: Check this box if it is currently possible to reasonably obtain a license for the copyrighted work.

WILL BE MAKING IT PUBLICLY AVAILABLE ON THE WEB OR USING OTHER MEANS OF BROAD DISSEMINATION: Check this box if you will make the work openly available on the Internet. Examples include, but are not limited to:

  1. Placing copyrighted works on publicly available websites
  2. Sending works via mass emailings
  3. Posting works to listservs or bulletin boards