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Copyright, Fair Use & Creative Commons

Factors of Fair Use

There are 4 statutory "factors" that the law considers in determining whether a use is fair. It is by weighing each of these factors independently and then analyzing the results as a whole that you determine whether your use is "fair". This determination is never clear cut (unless you are sued and the courts tell you). So part of Fair Use analysis is also risk assessment. However, keep in mind that the courts do take into consideration your efforts to stay within copyright. Thus documenting your Fair Use analysis is always a good idea.

Factor 1: Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
Factor 2: Nature of the copyrighted work
Factor 3: Amount and substantiality of the portion used in relation to the copyrighted work as a whole
Factor 4: Effect of the use upon the potential market for or value of the copyrighted work

Follow the Four Factors of Fair Use (6 min.)

Four Factors of Fair Use

For Fair Use:

  • Transformative (e.g. adding new expression or new meaning or new value)
  • Scholarship, research or education
  • Teaching or nonprofit educational institution
    • Restricted access
  • Criticism, comment, parody, news reporting

Against Fair Use:

  • Non-transformative -- virtually verbatim
  • Commerical / Profiting from use
  • Entertainment
  • Denying credit to creator

For Fair Use:

  • Factual or nonfiction works
  • Published works
  • Important to educational objectives



Against Fair Use:

  • Fictional or highly creative works
  • Unpublished works

For Fair Use:

  • Use of a small quantity of the work
  • Content is not considered "heart" of work.
    • "Heart of the work" is the portion that defines the work. For example, the biggest surprise in a tell-all biography or the most recognized part of a music piece.
    • An exception would be in parody cases -- as that tends to be the target of the parody


Against Fair Use:

  • Use of a large amount in relationship to the work as a whole
  • Portion used is central to (heart of) the work

For Fair Use:

  • Use would not hurt current market for work
  • Purchasing or acquiring copy
  • Minimal copies made
  • Lack of a licensing mechanism

Against Fair Use:

  • Use would deprive copyright owner of income
    • e.g. Can't copy to get out of paying for book
  • Available licensing mechanism
  • Affordable permission available
  • Numerous copies made
    • e.g. Publishing to web
  • Repeated long-term use