This article is adapted from a section of Lee Wilson’s new book, Fair Use, Free Use, and Use by Permission: Using and Licensing Copyrights in All Media, published by Allworth Press (www.allworth.com).

Whenever you consider using works created by someone else, you should take action to protect yourself from possible claims of infringement. The best way to do this is to take care to ensure that any use you make of another person’s copyrighted work falls into one of the fair use exceptions to infringement. Fair use is a kind of public policy exception to the usual standard for determining copyright infringement; that is, there is an infringing use of a copyrighted work but because of a countervailing public interest, that use is permitted and is not called infringement. Any use that is deemed by the law to be “fair” typically creates some social, cultural, or political benefit which outweighs any resulting harm to the copyright owner. In one fair use decision, the U.S. Supreme Court characterized fair use as a “breathing space within the confines of copyright.” Courts often view a fair use defense with some suspicion—after all, it contravenes the instincts of most lawyers and judges to accept that there are situations in which it is legal and even societally useful for one person to use the property of another without the consent of the owner. That means that it is important to convince yourself that you’re on the right side of the fair use fence when you use anyone else’s work.

Fair Use Checklist
Courts consider a long list of factors in determining whether a use is “fair.” The factors that courts must weigh in determining whether a use of a copyrighted work is a fair use are set out in Section 107 of the U.S. copyright statute. They are also embodied in the Fair Use Checklist reproduced above. Notice that the Checklist leaves the decision whether a use is fair or infringing up to you. However, it can help you evaluate your use on a point by point basis using the only binding standard that exists—the four factors of the copyright statute (and their subcategories). There is no definite boundary between fair use and infringement because no general rule defining infringement is possible—the copyright infringement evaluation is made by weighing particular circumstances. Make a few photocopies of the Fair Use Checklist and use it like a worksheet the next time you have a question about how much of someone else’s work you can use without permission—or whether you can use it at all without tracking down the copyright owner and asking for a license, which is the only way to make sure no one sues you if your use does not qualify as a fair use of the copyrighted work.

Fair Use Checklist¹Preliminaries
Name:² __________________________________ Date:³ ____________
Project
Name or title of project:⁴
_______________________________________________________________
Description of project:⁵
_______________________________________________________________
Work to Be Used⁶
Description of work to be used, including name or title:
_______________________________________________________________
Author or owner of copyright in work to be used:
_______________________________________________________________
Address and phone number of author or owner of copyright in work to be used:
_______________________________________________________________
Copyright information for work to be used:⁷
_______________________________________________________________
Copyright Status of Work to be Used
Is the work you want to use a public-domain work?
o yes o no
If you answer “yes” and are sure that the work is no longer protected by copyright, no permission to use the work is necessary. If you answer “no,” answer the questions below to help you determine whether your use of the work is a fair use.

Evaluation
Factors in Fair Use
Purpose of the proposed use:⁸
________________________________________________________________________________________________________________________________________________________
Character of the Use:⁹
• nonprofit educational use¹⁰ • commercial use¹¹
• research use • advertising use
• scholarship use • profit from use¹²
• criticism use
• comment use
• news reporting use
• parody use¹³
• restricted use¹⁴
• transformative or productive use¹⁵
• credit will be given to author • credit will not be given to author¹⁶
Nature of the copyrighted work:¹⁷
• factual work • creative work¹⁸
• published work • unpublished work¹⁹
Amount of the portion of the work used in relation to the copyrightedwork as a whole:²⁰
• less than 5 percent • 15 percent²¹
• 5 percent • more than 15 percent
• 10 percent
Substantiality²² of the portion of the work used in relation to the copyrighted work as a whole:
• portion used is not substantial • portion used is substantial
Effect of the use upon the potential market for or value of the copyrighted work:²³
• does not impair market • significantly impairs for the work market for the work²⁴
• will not replace a sale • could replace a sale of the work of the work
• will not diminish market for • will diminish market for the work the work
• does not increase exposure • significantly increases of the work exposure of the work²⁵
• use of the work limited in time • repeated use of the work over longer period²⁶
Other pertinent factors:
• you own a copy of the work²⁷ • you borrowed a copy of the work
• permission to use the work • permission to use the work is not available is readily available²⁸
Conclusion
Completed Analysis:²⁹
If you check more than two items in the right-hand column of answers under Factors in Fair Use (these are printed in boldface type), your proposed use is probably not a fair use.