One of the most powerful, flexible, and common exceptions to copyright protection is the doctrine of fair use. Fair use allows you to use copyrighted material without the permission of the copyright holder in many situations. The Copyright Act calls out a number of specific purposes for which the fair use of copyrighted material is generally favored. These include:
At its heart, fair use is a balancing test of four factors, commonly shortened to purpose, nature, amount, and effect.
Although fair use is a powerful exception to the copyright protection, it can be frustrating because there are no bright-line tests for determining fair use. Thus, the power of fair use is tempered by its uncertainty. Reasonable minds and copyright experts can, and often do, disagree about whether a particular use is fair. Only the final decision of a court can provide a definitive answer about fair use in a specific situation.
Congress, however, recognized that the risk generated by this uncertainty might unnecessarily chill otherwise fair uses of copyrighted material and provided a substantial benefit to non-profit academic institutions. Where the user of a copyrighted work has made a good-faith attempt to analyze the fair use factors, statutory damages for copyright infringement will be remitted to zero if infringement is ultimately found. Thus, it is important to consider the fair use factors, and document that analysis should a controversy arise about the use of copyrighted work.
In order to facilitate this analysis and documentation, a Fair Use Evaluation Checklist is provided below. Where you are relying on fair use to use a copyrighted work, you should go through the checklist to weigh the fair use factors. A hard copy or electronic copy of the checklist should be maintained for at least three years after your last use of the copyrighted work.
If you have any questions while using the checklist, do not hesitate to contact the Campus Copyright Librarian, Eric Prosser, at x7247 or firstname.lastname@example.org. If your proposed use does not appear to be allowed as a fair use, there still may be other means by which to use the material, and those options can be explored with the librarian.
Download the Fair Use Checklist