Empire State College Online Library

Empire State College Online Library

Creative Commons Attribution, Non-commercial, ShareAlike License

Fair Use

Thinking Through the Four Factors

There is no simple method for determining whether a particular use of a particular piece of content is Fair Use. That is something that has to be decided on an individual, case by case basis. This form will help you break that decision down into manageable parts.

If you have any questions while filling out the form, refer to the Copyright Information Web Site page on Fair Use at or contact a librarian at

Once you are done filling out the form,
1. Save it with a unique file name
2. Create an email to yourself
3. In the subject heading of your email, put name of the work you are using and “fair use decision.” For example, Harry Potter and the Goblet of Fire chapter 3 – Fair Use Decision.
4. Attach this document
5. Send the email
6. Archive the email, preferably in a folder that you will remember
7. Optionally, print this document and file it somewhere safe and memorable

1. Your name:Click here to enter text.
   The date: Click here to enter a date.
   
2. Full title of the work:Click here to enter text.
   Authors’ full names: Click here to enter text.
   Full journal or book title (if an article or chapter): Click here to enter text.
   Publication date,or creation date (if never published):Click here to enter text.
   URL or permalink (if a web resource):Click here to enter text.
   What parts used (page numbers, time stamps):Click here to enter text.
   
3. What learning (or other) objective(s) do you hope to achieve by using this work?
   Click here to enter text.
   
4. First Factor: Purpose and Character of the Use (positives)
   select all that apply
   ☐one copy for personal use
   ☐multiple copies for classroom use
   ☐purpose is education, research or scholarship
   ☐purpose is criticism or commentary, including parody
   ☐purpose is news reporting
   ☐ user is an individual or non-profit organization is not making any money from the use
   ☐use is a transformative work (a new product with a new purpose)
   
5. First Factor: Purpose and Character of the Use (negatives)
   select all that apply
   ☐user is a for-profit organization/company, or is making money from the use
   ☐purpose of use is entertainment, decoration or any of the arts

1. Overall, do you think this particular use of this particular work is favorable or unfavorable for the First Factor?Choose an item.
   Why?
   Click here to enter text.
   
2. Second Factor: Nature and Character of the Work Being Used (positives)
   select all that apply
   ☐factual work or work of non-fiction
   ☐published work
   

1. Second Factor: Nature and Character of the Work Being Used (negatives)
   select all that apply
   ☐creative work – literature, poetry, drama, art, etc.
   ☐unpublished work
   
2. Overall, do you think this particular use of this particular work is favorable or unfavorable for the Second Factor?Choose an item.
   Why?
   Click here to enter text.
   
3. Third Factor: Amount and Substantiality of the Portion Being Used (positives)
   select all that apply
   ☐excerpt or clip is a small proportion of the entire work
   ☐excerpt or clip is as short as possible and still capable of accomplishing the objective
   ☐excerpt or clip is not the “heart and soul” of the work (such as the climax, big reveal or most important part)
   
4. Third Factor: Amount and Substantiality of the Portion Being Used (negatives)
   select all that apply
   ☐excerpt or clip is all, or a large proportion of the entire work
   ☐excerpt or clip is greater than is necessary to achieve the objective
   ☐excerpt or clip is the “heart and soul” of the work (such as the climax, big reveal or most important part)
   
5. Overall, do you think this particular use of this particular work is favorable or unfavorable for the Third Factor?Choose an item.
   Why?
   Click here to enter text.
   
6. Fourth Factor: Market Effect (positives)
   select all that apply
   ☐it was not possible to contact the copyright owner for permission
   ☐a similar product was not available for purchase
   ☐the audience is limited to those who need access (by password protection if online, or by physical access to the content)
   ☐further copying and sharing has been disabled (if online – this could mean putting media on a streaming server, digital watermarking, disabling right-click, etc.)
   ☐one-time use (in a course, this means one academic term)
   ☐only one or a few copies made
   
7. Fourth Factor: Market Effect (negatives)
   select all that apply
   ☐it would have been possible get a license
   ☐your use could substitute for a sale of the original work or a derivative work made by the copyright owner
   ☐it would have been possible to purchase a similar product
   ☐audience is not limited to those who need access
   ☐further copying and sharing has not been disabled
   ☐many copies made
   ☐repeated or long-term use
   
8. Overall, do you think this particular use of this particular work is favorable or unfavorable for the Fourth Factor?Choose an item.
   Why?
   Click here to enter text.
   
9. Factors weighing in favor of this being a transformative use:
   select all that apply
   ☐it’s very unlikely that the new work could be mistaken for the original work, or for a derivative work of the original
   ☐it’s very unlikely that someone could use your work as a substitution for the original.
   ☐your new work is something original to you, and it just uses elements from the older work.
   ☐your new work consists of thumbnail images used in a timeline, an index added to a text, a juxtaposition of text from one source with images or video from another source, a collage composed of parts of other images, or something else that is strongly analogous to a transformative use precedent
   
10. Factors weighing against this being a transformative use:
    select all that apply
    ☐the new work could be mistaken for the original or a derivative work of the original work in some way

☐it’s reasonable to think that someone might use your work as a substitution for the original.
☐your new work takes the original and just adds, subtracts or changes elements

1. Do you consider this a transformative use? Choose an item.
   Why?
   Click here to enter text.
   
2. Considering transformative use and all Four Factors as a whole, do you think this is a Fair Use?Choose an item.
   Why or why not?
   Click here to enter text.
   

I affirm that all of my above responses are factual and true to the best of my knowledge, and that I am making every effort to abide by the spirit and letter of U.S. copyright law, Empire State College policies and higher education best practices.
Enter your digital signature by typing your name here: Click here to enter text.

This document does not constitute, nor should it be construed as legal advice.