Thinking Through Fair Use

Adapted from the University of Minnesota, Thinking Through Fair Use, available at and made available under a Creative Commons Attribution-NonCommercial 3.0 Unported License.

How to Use This Tool

Fair use is very context-dependent. Even after considering all relevant issues, the result is usually in impression that a particular use is “likely to be fair” or “not likely to be fair.” There are rarely definitive answers outside of courts.This tool can help you organize your thoughts around the issues, although it does NOT tell you whether a proposed use is fair or not, and does NOT provide any kind of legal advice. It simply helps you structure your own reflections about the fair use factors, and provides a record that you did consider relevant issues.

Remember that no single factor is decisive of fair use, and on any given factor, you may find that some aspects of a proposed use fall in the "favors fair use" column, while others simultaneously "weigh against" fair use. There also may be other relevant considerations that do not appear in this general-purpose tool. Many considerations are relevant, and only by looking at the whole picture, across all the issues, can you make a reasonable guess about whether your use is fair or not.

Note: check the boxes that, to the best of your understanding, apply to all or most of the materials. If the factor is only true of most of the materials, describe the exceptions in the Notes area. If the materials vary so much that it is difficult to use one form to accurately describe the important characteristics of all or most of them, you may need to complete separate forms for subsets of the materials. Contact the scholarly communication librarian with questions.

Factor #1: Purpose and character of the use

This is the only factor that deals with the proposed use - all the others deal with the work being used, the source work.

Favors Fair Use / Weighs Against Fair Use
 Educational, scholarly, and research uses, and/or news reporting /  Commercial activity
 Criticism or commentary /  Profiting from use
 Non-profit use /  Decorative or other non-critical, non-commentary use
 Transformative use (creates a new work with a new purpose), including parody and transformative technologies
 No fee charged

Notes: (Enter additional thoughts regarding the purpose of the new proposed use.)

Overall thoughts on the purpose factor – circle one:

1 / 2 / 3 / 4 / 5
Strongly favors fair use / Somewhat favors fair use / Neutral / Somewhat weighs against fair use / Strongly weighs against fair use

Factor #2: The nature of the copyrighted work

One element of this factor is whether the work is published or not. It is less likely to be fair to use elements of an unpublished work - which makes sense, basically: making someone else's work public when they chose not to is not very fair, even in the schoolyard sense. Nevertheless, it is possible for use of unpublished materials to be legally fair.

Another element of this factor is whether the work is more "factual" or more "creative": borrowing from a factual work is more likely to be fair than borrowing from a creative work. This is related to the fact that copyright does not protect facts and data. Many works are both factual and creative.

Favors Fair Use / Weighs Against Fair Use
 Published source /  Unpublished source
 Factual or non-fiction source /  Creative, artistic, or fiction source

Notes: (Enter additional thoughts regarding the nature of the original work.)

Overall thoughts on the nature of the original work factor – circle one:

1 / 2 / 3 / 4 / 5
Strongly favors fair use / Somewhat favors fair use / Neutral / Somewhat weighs against fair use / Strongly weighs against fair use

Factor #3: Amount and substantiality of the portion used

In most instances, the library will be interested in digitizing an entire work. This does not eliminate the possibility of fair use, depending on the other three factors and whether the amount used is only so much as is necessary for the user’s purpose. When there are circumstances in which we only want to use a portion of the work rather than the whole, that can lead to a stronger case for fair use.

Favors Fair Use / Weighs Against Fair Use
 Proportionally small excerpt, extract, or clip /  Entire work, or proportionally large extract
 Portion used is peripheral or not significant to the entire work /  Portion used is “heart of the work”
 Only as much as appropriate for a “purpose” favoring fair use (from Factor #1)

Notes: (Enter additional thoughts regarding the amount and substantiality of the proposed use.)

Overall thoughts on the amount and substantiality factor – circle one:

1 / 2 / 3 / 4 / 5
Strongly favors fair use / Somewhat favors fair use / Neutral / Somewhat weighs against fair use / Strongly weighs against fair use

Factor #4: Effect on the potential market for or value of the work

This factor is truly challenging - it asks users to become amateur economists, analyzing existing and potential future markets for a work, and predicting the effect a proposed use will have on those markets. But it can be thought of more simply: is the use in question substituting for a sale the source’s owner would otherwise make - either to the person making the proposed use, or to others? Generally speaking, where markets exist or are actually developing, courts tend to favor them quite a bit. Nevertheless, it is possible for a use to be fair even when it causes market harm.

Favors Fair Use / Weighs Against Fair Use
 Own lawful copy of the work (bought, donated, or otherwise legitimately acquired) /  Use directly substitutes for a sale that would otherwise have been made
 Only one or a few copies made /  Many copies made
 One-time use /  Repeated or long-term use
 Difficult to redistribute, or to make additional copies /  Easy to redistribute, or to make additional copies of the product of the use (i.e. digital file, online use)
 Proposed use stimulates the market for the original work /  Impairs the market for the original work
 No impact on market for original work
 No product marketed by copyright holder similar to the proposed use
 No way to pay or seek permission for the proposed use /  Easily-obtained and affordable license or permission
 Access restricted (limited to a class, to on campus use, etc.)

Notes: (Enter additional thoughts regarding the market effect of the proposed use.)

Overall thoughts on the effect of the proposed work on the market for the original – circle one:

1 / 2 / 3 / 4 / 5
Strongly favors fair use / Somewhat favors fair use / Neutral / Somewhat weighs against fair use / Strongly weighs against fair use

In the space below, please provide your overall thoughts on the likelihood that the proposed use is fair use, or limitations that need to be made, based on the above considerations:

Collection Development and Scholarly Communication Librarian Recommendation:

Please provide brief written assessment and check one of the boxes below for your recommended access level.

□Public

□Metadata only

□Metadata and medium resolution

□UCSC campus only

□UCSC Library only

□Curator View only. Restricted cannot be displayed to Public, UCSD campus or the UCSD Library

□Other (please describe exception and requirements needed)