Copyright Guidelines and Scenarios

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Using this Test

Using the Four-Factor Fair Use Test

For more complicated situations or when you need to use more than a small amount of content, use the four factor fair use test to determine whether the use is fair or requires permission.

With a particular use in mind, read about each factor (character of the use, nature of the work, amount used, effect upon the market) and answer each question about your use.

See how the balance tips with each answer. Make a judgment about the final balance: overall does the balance tip in favor of fair use or in favor of getting permission?

Factor 1 - What is the Character of Use?

Factor 1 - Character of Use

Uses with transformative purposes tip the balance in favor of fair use.  For example, criticism, commentary, news reporting, parody, or repurposing a work, providing a new context or otherwise adding value.

Nonprofit, educational, or personal support a determination of fair use, even if there is no transformative purpose.  They also add weight to a transformative fair use claim.  But even commercial uses can be fair then they involve repurposing content or adding value to it, such as parody, criticism, and commentary.

Commercial uses tend to tip the balance in favor of the copyright owner – in favor of seeking permission.

The favorable uses are strongly transformative when they use a work in a new way and serve a new market from the one the original was intended to serve. For example, using a small image of a poster to illustrate a timeline is transformative; creating a parody of a song is transformative; scholarly criticism that quotes to illustrate a point is transformative; a model's glossy photo used in a news report is transformative. All of these are examples of cases where commercial uses of an appropriate amount of another's work were found to be fair uses.

Factor 2 - What is the Nature of the Work to be Used?

Factor 2 - Nature of the Work

Works that are fact and published tip the balance in favor of fair use.

Works that are a mixture of fact and imaginative tend to have little effect on the balance, more or less canceling out this factor entirely.

Imaginative, highly creative or unpublished works tip the balance in favor of seeking permission.

Factor 3 - How Much of the Work will you Use?

Factor 3 - Amount

This factor has its own peculiarities. More favorable amounts are small quantities or the appropriate amount for a transformative purpose.  Using more than a small amount is less favorable to fair use.

But if you conclude under the first factor that your purpose is transformative, you can use an amount of the work that is appropriate to accomplish that purpose. A nonprofit transformative use of a whole work might weigh in favor of fair use if the amount is appropriate for the purpose.  A commercial use of the whole work would normally weigh significantly against fair use, unless the whole work were the appropriate amount to accomplish that purpose.

Typically, a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copy shop would need permission for the same copying. Similarly, commercial publishers normally have stringent limitations on the length of quotations, while a student writing a paper for a class assignment could reasonably expect to include lengthier portions.

Factor 4 - Effect on the Market

Factor 4 - If this kind of use were widespread, what effect would it have on the market for the original or for permission?

More favorable to fair use:

  • Proposed use is transformative and not merely duplicative, and the amount used is appropriate for transformative purpose.
  • Proposed use is not transformative, but the amount is small.
  • Original is out of print or otherwise unavailable
  • Copyright owner is unidentifiable
  • No available license of the type you want

Somewhat favorable to fair use:

  • Password protection and/or technological protection

Less favorable to fair use:

  • Use is not transformative
  • Competes with (takes sales away from) the original
  • Avoids payment for permission (royalties) in an established market for licenses of the type you desire

The first three factors affect the analysis of this factor.  In most cases, three things come together here: whether your use is transformative; whether the amount you used is appropriate for the transformative purpose; and whether there is an efficient and effective market offering a license to use the work in the way you want to use it.

Uses in the middle will reduce the risk associated with relying on fair use when there is a market for that work by protecting the work from possible negative effects of exposure.

Note: Even if a use is a fair use for one semester, repeated use of copyrighted materials semester after semester may not be considered a fair use because there is enough time to seek a license from the copyright holder to use the work.

In summary, transformative uses of appropriate amounts tend to be fair even if there is a license available. Non-transformative uses of materials for which there is a license of the type you need, readily available, require that you use only small parts, and employ protections described in the center of the paradigm above to reduce the risk of harm to the copyright owner.

These guidelines are based on the Copyright Crash Course originally created by Georgia Harper.  The course is licensed under a Creative Commons Attribution 4.0 International License.

Review Answers

Does the balance for your use tip in favor of fair use or in favor of getting permission after consideration of all four factors?

If you still have questions, check out the page of Common Copyright Scenarios at NWTC to see specific recommendations.