Below, find more information on how to analyze whether your use is fair or not by using a Fair Use checklist
"Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Fair use is intended to be ambiguous and is handled on a case-by-case basis. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission" (Crews, 44).
According to Kenneth Crews in Copyright Laws for Librarians and Educators, "fair Use is a balancing test and is highly fact-sensitive" (56). This means that each of the four factors is considered or weighed separately. Your use only has to be considered "fair" overall. In the subsequent sections, please find a more detailed explanation of each factor. Regardless of whether you are a content user or creator, it is essential that you become familiar with and comfortable using each factor.
1. Purpose and Character of the Use
Are you going to use the material for criticism, critique, or evaluation? If you are planning on directly analyzing or criticizing the work or using it for educational purposes, your use will favor or lean towards fair. Also, transformative uses (taking an original work and significantly changing it to make it your own rather than merely copying) will favor or lean towards fair. If you are using it for commercial purposes, your use may lean towards opposing fair use. (Crews, 62)
2. Nature of the work
Is the work you want to use fictional or non-fictional? Using a non-fictional work will lean towards fair whereas using fictional work will lean towards opposing fair use.
Certain types of non-fiction work such as math or sociology have greater freedom and are the perfect publications to encourage fair use. These works build upon those that have come before in order to expand the field."Fair use will be relatively constrained for certain fictional works in order to protect and reward creativity" (Crews, 62).
Also, if the copy is used from a non-published work, it may lean towards opposing fair use. If it is from a published work, it may lean towards fair.
3. Amount or substantiality of the work
Are you using what you need or more so?
If you are only going to discuss an image in an article, do you need to copy the full article? If you are going to discuss an article, do you need to copy an entire journal? Keep those things in mind when using materials.
If you are copying an entire journal to use one image of one article, the use may lean towards opposing fair use. If you use an image and only copy that image from the article, your use will lean towards fair. The less you use, the more fair the use.
Is the substance you want to use a major theme or idea of the work? For example, if you decide to copy 10 pages out of a 200 page book, but its the central 10 pages of that book, your use may lean towards opposing fair use (Copyright Law for Librarians and information professionals, Lesley Harris).
4. Effect of the use upon the potential market for or value of the copyrighted work
Will it impede the original author(s) or copyright owner's ability to make money off of original work?
If the use causes harm to the author's intended use of the work or effects the author's economic rights substantially, your use will lean towards opposing fair use.
The purpose of this guide is to provide resources and information for resolving copyright questions. This research guide does not supply legal advice nor is it intended to replace the advice of legal counsel.
If you would like more information regarding fair use, please feel free to explore the links below.