Fort Lewis College
Fair Use Evaluation Checklist
This checklist is a tool to guide you through the fair use balancing test with regards to copyrighted materials that you wish to use. The four factors of fair use below are taken directly from section 107 of the Copyright Act. For the criteria under each factor, check each box which applies to the copyrighted work you wish to use. Some explanatory material is available by placing your mouse over the symbols.
Because the analysis of fair use has been applied by courts with great flexibility and varying weights for each factor, the determination of fair use is never fully concrete. In your analysis, however, if the factors leaning toward fair use substantially outnumber those against, you should feel confident that the proposed use falls within the fair use exception. Where the reasons against are in the majority, you should seek permission of the copyright holder or reconsider the planned use of the work.
Should the factors be evenly divided, or should you have any questions regarding the interpretation of your review, do not hesitate to contact Eric Prosser, Campus Copyright Librarian (extension 7247, ). It is recommended you save an electronic copy or print and retain a copy of the completed form.
TITLE OF WORK: / Enter title of copyrighted work. /AUTHOR/CREATOR: / Enter author/creator of work. /
COPYRIGHT HOLDER: / Enter copyright holder (if known). /
PROPOSED USE: / Describe your proposed use. /
FACTOR ONE: “THE PURPOSE AND CHARACTER OF THE USE”
Toward Fair Use
☐Instructional/Teaching
☐Research
☐Scholarship
☐Criticism
☐Commentary
☐News Reporting
☐Transformative/Productive Use
☐Not-For-Profit Use
☐Parody
Against Fair Use
☐Commercial Use
☐Entertainment
☐Profit-Generating Use
☐Exact Copy
☐Non-productive Use
☐Bad Faith Use
☐Failing to credit original author/creator
FACTOR TWO: “THE NATURE OF THE COPYRIGHTED WORK”
Toward Fair Use
☐Published Work
☐Factual/Nonfiction
Against Fair Use
☐Unpublished Work
☐Fiction/Creative
☐Consumable
FACTOR THREE: “THE AMOUNT AND SUBSTANTIALITY OF THE PORTION USED”
Toward Fair Use
☐Small portion used
☐Portion is not central or important to the substance of the work
☐Only as much of the work is used as needed for purposes identified in the first factor
Against Fair Use
☐Large portion (or all) used
☐Portion is central to the work (i.e., contains the “heart of the work”)
☐Uses more of the work than needed for the purposes identified in the first factor
FACTOR FOUR: “THE EFFECT OF THE USE UPON THE POTENTIAL MARKET FOR OR VALUE OF THE COPYRIGHTED WORK”
Toward Fair Use
☐One-time, spontaneous use
☐Few copies exist
☐User lawfully owns copy of work
☐No longer in print
☐No licensing mechanism
☐Limited access to use of work
☐No significant effect on market for or value of work
Against Fair Use
☐Repeated use
☐Multiple copies exist
☐User does not own copy of work
☐Still offered in print
☐Available licensing mechanism
☐Widespread access to use of work
☐Proposed use could replace sales or substitute for copyrighted work
Based on the foregoing evaluation the use of the proposed work ☐ falls ☐ does not fall within the scope of fair use.
FAIR USE EVALUATOR: / Your name. / DATE: / MM/DD/YY /