The Fair Use doctrine in the U.S. copyright law is divided into four factors. It is the weighing of these four factors in an analytic process that help you determine whether your use of copyrighted material is “fair,” or whether you should seek permission for use from the copyright holder. The four factors of Fair Use are:
The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the portion used
The effect of use on the potential market for the copyrighted work
All four factors are weighed when conducting a fair use analysis. For example, if a work is unpublished, it would weigh more against Fair Use for that factor (the nature of the copyrighted work) than if the work is published. Or, if you are using only a very small amount of the work (the amount and substantiality of the work), it would tend to favor for Fair Use.
How do you determine if a use is fair? As referenced in the first blog post this week, you can use a fair use checklist to help you. Another tool you might want to try using to help with a fair use assessment is the Fair Use Evaluator. It allows you to input information related to the content you wish to use and it will weigh the factors for you. There’s also a nice Thinking Through Fair Use tool from the University of Minnesota Libraries. The nice thing about that tool is that once you’ve walked through the assessment, you can email a copy of the report to yourself; you will then have a record of your fair use assessment should anyone question you later. Also, many groups have developed Codes of Best Practices for Fair Use; depending on the type of use you need, one of these groups may have a set of guidelines and practices that will help inform you when you have a fair use question.