Checklist for Conducting a Fair Use Analysis Before Using Copyrighted Materials

This checklist is a tool to assist you in applying the balancing test for determining whether you may make or distribute copies of works protected by copyright without having to obtain the permission of the copyright holder.

Name:_________________________________________ Date:________________________________________

Class or Project:______________________________________________________________________________

Title of Copyrighted Work:______________________________________________________________________

Portion to be used (e.g., pages):_________________________________________________________________

Directions: Check all boxes that apply. For each of the four sections below, determine whether that factor favors or disfavors a finding of fair use. Where the factors favoring “fair use” outnumber the factors weighing against a finding of “fair use,” reliance on the fair use exception is justified. Where less than half of the factors favor “fair use,” permission should be obtained before copying or disseminating copies of the work. Where the factors appear evenly split or you have questions about interpretation, please feel free to contact the Library.

PURPOSE OF THE USE

Favoring Fair Use

Educational – teaching, research, scholarship, criticism, comment
Transformative or productive use
Nonprofit use

Disfavoring Fair Use

Commercial, entertainment, or other
Non-transformative, verbatim/exact copy (changes the work to serve a new purpose)
Profit-generating use

NATURE OF THE COPYRIGHTED MATERIAL

Favoring Fair Use

Factual, nonfiction, news work
Published work

Disfavoring Fair Use

Creative (art, music, fiction), or consumable (workbooks, tests)
Unpublished work

AMOUNT COPIED

Favoring Fair Use

Small quantity (e.g., a single chapter or journal article or other excerpt consisting of less than 10% of the work)
Portion used is not central to entire work as a whole
Amount is appropriate to education purpose

Disfavoring Fair Use

Large portion or entire work
Portion used is central or the "heart" of the work
Includes more than necessary for education purpose

EFFECT ON THE MARKET FOR ORIGINAL

Favoring Fair Use

No significant effect on the market or potential market for the copyrighted work
One or few copies made and/or distributed
No longer in print; absence of licensing mechanism
Restricted access (limited to students in a class or other appropriate group)
One-time use, spontaneous use (no time to obtain permission)

Disfavoring Fair Use

Cumulative effect of copying would be to substitute for purchase of the copyrighted work
Numerous copies made and/or distributed
Reasonably available licensing mechanism for obtaining permission to use the copyrighted work currently available (e.g., Copyright Clearance Center licensing or off-prints available)
Will be making it publicly available on the Web or using other means of broad dissemination
Repeated or long-term use

NOTE: In many cases, the MSP Library may have a license to use material (e.g., an article or chapter from one of our databases). A fair use analysis does not have to be conducted where the desired use is permitted under the terms of an applicable license. Similarly, other provisions of the copyright law cover such matters as library copying, in-class use, and distance learning. This checklist is not needed where other specific statutory provisions authorize the activity.

The Checklist and introduction are licensed by a Creative Commons Attribution License (CC by 4.0) with attribution to the original creators of the checklist: Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville).