Understanding Copyright

Fair Use Checklist

Determinging if your use is fair

Use this checklist to assist your determination of whether your proposed use of a copyrighted work is “fair use” under the Copyright Act.

To Use this Fair Use Checklist

  • fill in the blanks about the copyrighted work and your proposed use of it;
  • check the boxes that apply to your use (many uses will require that you check more than one box under each category); 
  • some checked boxes will favor a finding of fair use and others may oppose a finding of fair use;
  • the ultimate concern is whether the cumulative “weight” of the checked factors favors or opposes fair use. Because you are most familiar with your proposed use of the copyrighted work, you are probably best positioned to make that determination;
  • once you have complete the checklist, you might wish to keep a copy of the completed checklist in your files for future reference. You can use your browser's print button to print a copy.

If you cannot complete the checklist or have questions about its use, help is available.

Background

"Fair use" is a provision of the Copyright Act that provides that certain uses of copyrighted works do not constitute copyright infringement. The Copyright Act establishes a four factor test, the "fair use test," to determine whether a use of a copyrighted work is fair use that does not require the permission of the copyright owner. The Copyright Information Center provides additional background information about fair use to help you.

A Note About Licensed Resources

If you are seeking to use a digitized version of a copyright work (such as a PDF or other electronic copy on a Chalk site), remember that many works are licensed by the University of Chicago Library and can be accessed through the Library’s electronic resources. Because of the inherent subjectivity in determinations of fair use under the Copyright Act, in most cases linking to licensed resources is preferable to relying on fair use to establish your right to use copyrighted materials. The Library also makes available additional information about how to create links to licensed resources within Chalk or e-reserves.

Fair Use Checklist Form

Your Name:

Your school/department:

Project/Course:

Date:

First Factor: Purpose of Use

Favoring Fair Use

Teaching (including multiple copies for classroom use)

Research

Scholarship

Use by nonprofit educational institution

Criticism

Comment

News reporting

Transformative or productive use (changes the work for a new use)

Restricted access (password protected
access for students or other restricted group)

Parody

Opposing Fair Use

Commercial activity

Profiting or charging for the use

Entertainment

Facts that show you were acting in bad faith or with knowledge of possible wrongdoing

Not giving attribution to the original author

Use creates a derivative work of the original (full translation, adaptation, abridged version, etc.)

Second Factor: Nature of Copyrighted Work

Favoring Fair Use

Published work

Factual work

Important to favored educational objectives

Opposing Fair Use

Unpublished work

Creative work (art, music, poetry, novels, films, plays)

Fiction

Consumable work (intended to be used only once, e.g., a workbook)

Work created expressly for the purpose of the proposed use (e.g., case studies)

Third Factor: Amount of Work

Favoring Fair Use

Small quantity of the work used

Portion used is not central or significant to the whole work

Amount is appropriate for favored educational objectives

Opposing Fair Use

Large portion of the work used

Portion used is central to the entire work, or the “heart” of the work

Fourth Factor: Effect of Your Use

Favoring Fair Use

Users owns lawfully acquired or purchased copy of the original work

Number of copies made (or number of users to whom made accessible) is one or few

No significant effect on the market or potential market for copyrighted work

No similar product is marketed by the copyright holder

Lack of licensing or permission mechanism

The copyright holder cannot be identified or cannot be found after a reasonable search (or does not respond to requests for permission)

Opposing Fair Use

Use could replace a sale of copyrighted work

Use would significantly impair the market or potential market for the copyrighted work

Reasonably available licensing mechanism exists for the copyrighted work

Reasonable available and affordable permission is available for using the work

You make the work accessible on the Web or in another public forum

Repeated or long term use

 

Adapted with permission from the Copyright Advisory Office at Columbia University, Kenneth D. Crews, director (www.copyright.columbia.edu).

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