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Copyright and Fair Use

Attribution

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This Guide and the Checklist are adapted from the Fair Use Checklist created by Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville) and is licensed by a Creative Commons Attribution License.

Fair Use and Permitted Uses

Activities within fair use are not infringements

Fair use is not an infringement of copyright. It allows under certain conditions a person to use copyright protected material without permission. Fair use is an important right to use copyrighted works at the university. Fair use can allow us to clip, quote, scan, share, and make many other common uses of protected works. But not everything is within fair use. Fair use depends on a reasoned and balanced application of four factors: the purpose of the use; the nature of the work used; the amount used; and the effect of the use on the market for the original. A more in-depth discussion of fair use may be found here.

Fair use is one of many statutory rights to use copyrighted works

Fair use is encoded in the U.S. Copyright Act, which also includes many other provisions allowing uses of works in the classroom, in libraries, and for many other purposes. These statutes, however, are highly detailed, and the right to use works is usually subject to many conditions and limitations.

Uses are also allowed with permission

If your use of a copyrighted work is not within one of the statutory exceptions, you may need to secure permission from the copyright owner. A non-exclusive permission does not need to be in writing, but a signed writing is almost always good practice. The permission may come directly from the copyright owner, or through its representative agent or copyright agency.

U.S. copyright law applies to domestic and foreign works

In general, the same principles of copyright under the domestic law of the U.S. (or of another country) apply to a work, whether the work originated in the U.S. or elsewhere. Under major multinational treaties, many countries have agreed to give copyright protection to works from most other countries of the world. Because the U.S. has joined such treaties, you should apply U.S. copyright law to most works, regardless of their country of origin. For a more in-depth discussion of copyright and foreign works, you can refer to Special Cases.

The Checklist

The Fair Use Checklist and variations on it have been widely used for many years 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). The four factors form the structure of this checklist.  Congress and courts have offered some insight into the specific meaning of the factors, and those interpretations are reflected in the details of this form.

Benefits of Using the Checklist

A proper use of this checklist should serve two purposes.  First, it should help you to focus on factual circumstances that are important in your evaluation of fair use.  The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis.  Second, the checklist can provide an important mechanism to document your decision-making process.  Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project.  Keep completed checklists on file for future reference.

The Checklist as Roadmap

As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns.  Some checked 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, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use.  This is not an exercise in simply checking and counting boxes.  Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use.  Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.

Caveat

This checklist is provided as a tool to assist you when undertaking a fair use analysis.  The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair.  Each factor should be given careful consideration in analyzing any specific use.  There is no magic formula; an arithmetic approach to the application of the four factors should not be used.  Depending on the specific facts of a case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.

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