Fair Use is a legal doctrine of the U.S. Copyright Act of 1976, found in Section 107. Fair Use permits unlicensed uses of copyrighted works if those uses meet certain factors, which are described below.
The Fair Use doctrine uses 4 factors to determine whether a use is a Fair Use. Those 4 factors are described below.
This factor weighs whether a use is more educational or more commercial. Uses that advance education or the arts are generally found to be a fair use. This factor also looks at whether a use is transformative: does that use build upon or make a substantive change to the original work? If so, it is more likely to be found to be a fair use.
This factor looks at whether the original work is more creative or educational, fiction or nonfiction. Facts and ideas are not protected by the copyright law. However, the expression of those facts and ideas is protected. This factor looks at the originality of that expression.
This factor looks at how much of the original work is being used and how important that portion is in the original work. Using less of a work is generally less likely to be an infringing use of that work.
This factor looks at whether the use harms the market of the original work, by, for example, acting as a substitute for the purchase of the original item.
A federal court ultimately decides if a use is a Fair Use, and that decision would come as a result of a lawsuit.
Fair Use is a balancing act of the 4 factors discussed above, and all 4 factors need to be applied. Determining whether a use is a Fair Use is really dependent on the particular circumstances of each use.
The checklist and flowchart included on this page might help in considering whether your intended use might be an Educational Fair Use.
This checklist can help with determining whether a use is likely to be a Fair Use.
1. The Purpose and Character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
| Favoring Fair Use | Opposing Fair Use |
| □ Teaching (including multiple copies for classroom use) | □ Commercial Activity |
| □ Research | □ Profiting from the Use |
| □ Scholarship | □ Entertainment |
| □ Nonprofit Educational Institution | □ Bad-Faith Behavior |
| □ Criticism | □ Not Crediting the Original Author |
| □ Comment | |
| □ News reporting | |
| □ Transformative or Productive use (changes work for new utility) | |
| □ Restricted Access (to students or other appropriate group) | |
| □ Parody |
2. The Nature of the copyrighted work.
| Favoring Fair Use | Opposing Fair Use |
| □ Published Work | □ Unpublished Work |
| □ Factual or Nonfiction Based | □ Highly Creative Work (art, music, novels, films, plays) |
| □ Important to Favored Educational Objectives | □ Fiction |
3. The Amount and Substantiality of the portion used in relation to the copyrighted work as a whole.
| Favoring Fair Use | Opposing Fair Use |
| □ Smallest Quantity Appropriate for the Purpose of the Use | □ Large Portion or Whole Work Used |
| □ Portion Used Is Not Central to Work | □ Portion Used Is Central to Work or Significant to Entire Work or Is the “Heart of the Work” |
| □ Amount is Appropriate for Favored Education Purpose |
4. The Effect of the use upon the potential market for or value of the copyright work.
| Favoring Fair Use | Opposing Fair Use |
| □ User Owns Lawfully Acquired or Purchased Copy of Original Work | □ Could Replace Sale of Copyrighted Work |
| □ One or Few Copies Made | □ Significantly Impairs Market or Potential Market for Copyrighted Work or Derivative |
| □ No Significant Effect on the Market or Potential Market for Copyrighted Work | □ Reasonably Available Licensing Mechanism for Use of the Copyrighted Work |
| □ No Similar Product Marketed by the Copyright Holder | □ Affordable Permission Available for Using Work |
| □ Lack of Licensing Mechanism | □ Use Is Made Accessible on the Web or in Other Public Forum |
| □ Numerous Copies Made | |
| □ Repeated or Long-Term Use |
