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). Fair use is determined by a balanced application of four factors set forth in the statute:
- the purpose of the use;
- the nature of the work used;
- the amount and substantiality of the work used; and
- the effect of the use upon the potential market for or value of the work used.
Those factors form the structure of this checklist. Congress and courts have offered some insights into the specific meaning of the factors, and those interpretations are reflected in the details of this form.
Benefits of the Checklist
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 depend 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 checkboxes 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.