Fair Use Check List

The outline for the following Fair Use Checklist is based on a document created by Professor Kenneth Crews and the staff of the University Copyright Office at Indiana University–Purdue University–Indianapolis. Based on the four factors of fair use—purpose, nature, amount and effect—the checklist was created to help educators, librarians and others evaluate content uses to determine if fair use applies. This tool provides an important means for recording your fair use analysis, which is critical to establishing “reasonable and good-faith” attempts to apply fair use.

First Factor: What is the Purpose and Character of the Use?

Favoring Fair Use
☐Nonprofit
☐Educational
☐Personal
☐Teaching
☐Criticism and Comment
☐Scholarship & Research
☐News Reporting
☐Parody
☐Restricted Access

Opposing Fair Use
☐Commercial
☐For Profit
☐Entertainment
☐Bad-faith Behavior
☐Denying Credit to Original Author

Second Factor: What is the Nature of the Work to be Used?

Favoring Fair Use
☐Factual or Nonfiction Based
☐Published Work
☐Important to favored Educational Objectives

Opposing Fair Use
☐Creative (art, music, novels, films, plays)
☐Unpublished Work
☐Textbooks or Material Prepared for School Markets
☐Works of Limited Circulation
☐Out-of-Print Work

Third Factor: How much of the work will be used?

Favoring Fair Use
☐Small Amount
☐Portion used is not Central or Significant to Entire Work
☐Amount is Appropriate for Favored Educational Purpose (books, periodicals, and music)

Opposing Fair Use
☐Large Amount
☐Portion Used is Central to Work or “Heart of the Work”

Fourth Factor: What is the effect of the use on the market for the work?

Favoring Fair Use
☐No Effect
☐Licensing/ Permissions Unavailable

Opposing Fair Use
☐Major Effect- Impairs Market or Potential Market for Copyrighted Work or Derivative
☐Available Licensing Mechanism for Use of the Copyrighted Work or Derivative
☐Work is Made Available to the World

Documenting your Analysis

Prepared by: __________________________________________________________________________________
Department: ___________________________________________________________________________________
E-mail: _______________________________________________________________________________________
Phone Number: ________________________________________________________________________________
Date: _________________________________________________________________________________________

After considering each of the fair use factors/subfactors above, please explain why your proposed use would satisfy the fair use defense. Remember that if the copyright holder alleges that your use infringed his/her copyright, you will have the burden of proving that it was “fair.” See, e.g., American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 918 (2d Cir. 1994), cert. dismissed, 516 U.S. 1005 (1995).