Fair Use

Introduction to the Fair Use Checklist (PDF)

The Fair Use Checklist created by Kenneth D. Crews (Columbia University) and Dwayne K. Buttler (University of Louisville) is widely used to help educators, librarians, lawyers, and many other users of copyrighted works determine whether their activities are within the limits of fair use under U.S. copyright law (Section 107 of the U.S. Copyright Act). Fair use is determined by the application of four factors: (1) the purpose of the use; (2) the nature of the work used; (3) the amount and substantiality of the work used; and (4) the effect of the use upon the potential market for, or value of the work. These four factors form the foundation of the checklist. Congress and courts have offered some insights into the specific meaning of the four factors. Their interpretations are reflected in the checklist.

Why Use the Checklist

Using the checklist will help you focus on the factual circumstances that are important in evaluating fair use. Fair use depends greatly on the particular facts of a given situation, and changing one or more facts may alter the analysis. The checklist can also provide a mechanism to document your decision-making process. Recording of your analysis can be crucial for establishing good faith. You may want tp consider adding to the checklist the current date and notes about your project. Keep completed checklists on file for future reference.

As you apply the checklist to your situations, you are likely to check more than one box in each column and even check boxes across columns. Some boxes will favor fair use and others may oppose fair use. A key issue is whether you are acting reasonably in checking any given box. The ultimate question being whether the cumulative weight of the factors indicate, or does not indicate fair use. You need to consider the strength of your circumstances and the overall conditions in your analysis for or against fair use. Since you are most familiar with your project, you are likely in the best position to evaluate the facts and make the decision.

Fair Use Checklist (PDF)