Fair Use Analysis Checklist

FAIR USE ANALYSIS CHECKLIST

17 U.S.C. § 107

IMPORTANT DISCLAIMER

Fair use is a highly fact-specific, case-by-case determination. This checklist provides a framework for analysis but cannot guarantee any particular outcome. Courts weigh the four statutory factors together, and no single factor is determinative. Always consult with a qualified intellectual property attorney for specific legal advice.

OVERVIEW OF FAIR USE

Statutory Text - 17 U.S.C. § 107

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work."

SECTION 1: PROJECT INFORMATION

Analysis Prepared By: _____________________________________________

Date: _____________________________________________

Project/Use Description:
_____________________________________________
_____________________________________________
_____________________________________________

Original Copyrighted Work:

Proposed Use:

SECTION 2: PRELIMINARY QUESTIONS

Before conducting a full fair use analysis, consider these threshold questions:

2.1 Do you actually need a fair use defense?

☐ Is the work in the public domain?

• Published before 1928 (as of 2024)
• U.S. government work
• Copyright expired or forfeited

If yes, no permission needed - stop here.

☐ Do you have permission/license?

• Written license from copyright owner
• Creative Commons or open license
• Implied license

If yes, no fair use analysis needed - stop here.

☐ Is your use a non-infringing use?

• Using only ideas, facts, or unprotectable elements
• Independent creation (not copying)

If yes, no fair use analysis needed - stop here.

2.2 Preamble Uses - 17 U.S.C. § 107

Does your use fall into one of the categories mentioned in the preamble?

☐ Criticism
☐ Comment
☐ News reporting
☐ Teaching
☐ Scholarship
☐ Research

Note: These categories are illustrative, not exhaustive. Other uses may also qualify as fair use, and not all uses in these categories are automatically fair.

FACTOR 1: PURPOSE AND CHARACTER OF THE USE

17 U.S.C. § 107(1)

"The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes"

1.1 Commercial vs. Non-Commercial

Is your use commercial in nature?

☐ Clearly Commercial:

• Direct sale of product containing the work
• Use in advertising to promote goods/services
• For-profit business use

☐ Mixed/Indirect Commercial:

• Non-profit organization with some revenue
• Ad-supported website/platform
• Professional advancement (but not direct sale)

☐ Non-Commercial:

• Personal use
• Educational use in non-profit setting
• Non-profit research
• Journalism/news (public interest)

Commercial nature weighs: ☐ Against fair use ☐ Neutral ☐ For fair use

1.2 Transformative Use

Is your use "transformative"? (Key question per Campbell v. Acuff-Rose, 510 U.S. 569 (1994))

A transformative use adds something new, with a further purpose or different character, and does not merely supersede the original.

Purpose Analysis:

☐ Different purpose from the original?

• Original purpose: _________________________
• Your purpose: _________________________

☐ New expression, meaning, or message?

• What new meaning do you add? _________________________

☐ Is the original work used as raw material for new creation?

Types of Transformative Use:

☐ Criticism/Commentary - Using portions to critique or comment on the work itself
☐ Parody - Using the work to comment on or criticize the original (not mere satire)
☐ News Reporting - Using to report on newsworthy events
☐ Education/Scholarship - Using to teach or analyze
☐ Search Engine/Indexing - Technical reproduction for information location
☐ Quotation - Brief quotes in new scholarly/critical work
☐ Other transformative purpose: _________________________

☐ NOT Transformative:

• Merely reproducing the work
• Using for same purpose as original
• Simple format shifting
• Convenience copying

Transformativeness weighs: ☐ Strongly for fair use ☐ Somewhat for fair use ☐ Neutral ☐ Against fair use

1.3 Good Faith and Fair Dealing

☐ Did you act in good faith?
☐ Did you give credit/attribution?
☐ Did you obtain what permissions you could?
☐ Did you limit use to what was necessary?

FACTOR 1 OVERALL ASSESSMENT

FACTOR 1 CONCLUSION: ☐ Favors Fair Use ☐ Neutral ☐ Weighs Against Fair Use

Notes:
_____________________________________________
_____________________________________________

FACTOR 2: NATURE OF THE COPYRIGHTED WORK

17 U.S.C. § 107(2)

"The nature of the copyrighted work"

2.1 Creative vs. Factual

What is the nature of the original work?

☐ Highly Creative:

• Fiction (novels, stories, screenplays)
• Music compositions
• Artistic works
• Poetry
• Dramatic works

More protection = weighs against fair use

☐ Mixed/Somewhat Creative:

• Documentary films
• Biographies
• Historical accounts
• News photographs

☐ Factual/Informational:

• News articles
• Scientific papers
• Technical manuals
• Reference works
• Compilations of facts

Less protection = weighs toward fair use

Nature of work weighs: ☐ Against fair use ☐ Neutral ☐ For fair use

2.2 Published vs. Unpublished

Has the original work been published?

☐ Published:
The work has been distributed to the public with the copyright owner's consent.
Publication generally favors fair use.

☐ Unpublished:
The work has not been publicly distributed.
Authors have stronger interest in controlling first publication.
Weighs against fair use (but not determinative - Harper & Row, Inc. v. Nation Enterprises)

Publication status weighs: ☐ Against fair use ☐ Neutral ☐ For fair use

2.3 Available for Licensing

☐ Is the work readily available for licensing?
☐ Does a licensing market exist?
☐ Would obtaining a license be practical?

Note: Availability of license is more relevant to Factor 4 but can inform this analysis.

FACTOR 2 OVERALL ASSESSMENT

FACTOR 2 CONCLUSION: ☐ Favors Fair Use ☐ Neutral ☐ Weighs Against Fair Use

Notes:
_____________________________________________
_____________________________________________

FACTOR 3: AMOUNT AND SUBSTANTIALITY

17 U.S.C. § 107(3)

"The amount and substantiality of the portion used in relation to the copyrighted work as a whole"

3.1 Quantitative Analysis (Amount)

How much of the original work are you using?

General Guidelines (Not Rules):

☐ Using entire work - generally weighs against fair use
☐ Using substantial portion (more than 50%) - tends to weigh against
☐ Using moderate portion (10-50%) - may be acceptable depending on purpose
☐ Using small portion (less than 10%) - generally more favorable
☐ Using only what is necessary for transformative purpose - favorable

Quantitative assessment: ☐ Favors fair use ☐ Neutral ☐ Weighs against

3.2 Qualitative Analysis (Substantiality)

Did you use the "heart" of the work?

Even a small amount may weigh against fair use if it represents the most valuable or recognizable portion.

☐ Heart of the Work Considerations:

• Most memorable or recognizable portion?
• Most commercially valuable part?
• Key creative expression?
• Essential to the work's identity?

☐ Examples that may be the "heart":

• Climax of a story
• Hook or chorus of a song
• Key quote or passage
• Central image of a photograph
• Most iconic scene of a film

Did you take the "heart"? ☐ Yes ☐ No ☐ Uncertain

Qualitative assessment: ☐ Favors fair use ☐ Neutral ☐ Weighs against

3.3 Necessity and Purpose

Was the amount used reasonably necessary for your purpose?

☐ Used only what was necessary for criticism/commentary
☐ Used more than necessary for the purpose
☐ Amount is justified by transformative purpose (parody may require more)

Note: The more transformative the use, the more latitude courts give on the amount used.

FACTOR 3 OVERALL ASSESSMENT

FACTOR 3 CONCLUSION: ☐ Favors Fair Use ☐ Neutral ☐ Weighs Against Fair Use

Notes:
_____________________________________________
_____________________________________________

FACTOR 4: EFFECT ON THE MARKET

17 U.S.C. § 107(4)

"The effect of the use upon the potential market for or value of the copyrighted work"

This is often considered the most important factor.

4.1 Market Harm Analysis

Does your use harm the market for the original?

☐ Direct Market Substitution:

• Does your use replace purchase of the original?
• Would consumers choose your version instead of buying the original?
• Are you competing in the same market?

☐ Derivative Markets:

• Does your use harm potential licensing markets?
• Are you entering a market the copyright owner would normally exploit?
• Have you foreclosed licensing opportunities?

☐ No Market Harm:

• Different audiences/markets
• Your use may actually drive sales of original
• No realistic licensing market for this use
• Transformative use serves different market need

4.2 Market Analysis Questions

Existing Market:

☐ Is there an existing market for the original work? ☐ Yes ☐ No ☐ Limited
☐ Does your use compete in that market? ☐ Yes ☐ No ☐ Partially

Potential Market:

☐ Is there a potential derivative market? ☐ Yes ☐ No ☐ Speculative
☐ Would this use typically be licensed? ☐ Yes ☐ No ☐ Uncertain
☐ Is there an established licensing scheme? ☐ Yes ☐ No

Impact Assessment:

4.3 Widespread Use Consideration

If your use became widespread, what would be the effect?

☐ Would widespread similar use significantly harm the copyright owner?
☐ Would it undermine incentives to create such works?

FACTOR 4 OVERALL ASSESSMENT

FACTOR 4 CONCLUSION: ☐ Favors Fair Use ☐ Neutral ☐ Weighs Against Fair Use

Notes:
_____________________________________________
_____________________________________________

SECTION 3: OVERALL FAIR USE DETERMINATION

Summary of Four Factors

Overall Assessment

☐ Likely Fair Use - Most factors favor fair use; use is transformative with minimal market harm

☐ Possible Fair Use - Mixed factors; some risk but reasonable arguments for fair use

☐ Uncertain - Factors are closely balanced; significant legal risk

☐ Likely NOT Fair Use - Most factors weigh against; significant infringement risk

☐ Probably NOT Fair Use - Strong factors against; high risk of liability

SECTION 4: RISK ASSESSMENT AND RECOMMENDATIONS

Risk Level

☐ Low Risk: Strong fair use argument; proceed with use

☐ Moderate Risk: Fair use possible but not certain; consider:

• Seeking permission
• Reducing amount used
• Increasing transformativeness
• Consulting attorney

☐ High Risk: Fair use unlikely; strongly consider:

• Obtaining a license
• Using alternative material
• Consulting attorney before proceeding

☐ Very High Risk: Fair use defense weak; do NOT proceed without:

• License from copyright owner
• Legal advice confirming fair use

Recommendations

If proceeding with use:

☐ Document your fair use analysis
☐ Give attribution/credit where appropriate
☐ Use only what is necessary
☐ Consider ways to make use more transformative
☐ Monitor for cease-and-desist letters
☐ Consult with attorney if high-value use

If uncertain:

☐ Seek legal advice
☐ Request permission from copyright owner
☐ Consider alternative sources (public domain, Creative Commons)
☐ Use less of the work
☐ Make use more transformative

SECTION 5: RELEVANT CASE LAW REFERENCE

Key Fair Use Cases

ATTESTATION

I have completed this fair use analysis in good faith based on the information available to me.

Analyzed By: _____________________________________________

Date: _____________________________________________

Reviewed By (if applicable): _____________________________________________

Notes/Additional Considerations:
_____________________________________________
_____________________________________________
_____________________________________________

Disclaimer: This checklist is provided for informational purposes only and does not constitute legal advice. Fair use is a complex, fact-specific legal doctrine. The outcome of any fair use determination depends on the specific facts and circumstances of each case. Always consult with a qualified intellectual property attorney for advice regarding specific fair use questions.

APPENDIX: FAIR USE MYTHS

Common Misconceptions:

☐ MYTH: "Using less than 30 seconds of a song is always fair use."
FACT: There is no bright-line rule for amount. Even a few seconds may infringe if it is the "heart" of the song.

☐ MYTH: "Non-commercial use is always fair use."
FACT: Commercial nature is one factor, but non-commercial use can still infringe.

☐ MYTH: "Giving credit makes it fair use."
FACT: Attribution is not a substitute for permission. Fair use depends on the four factors.

☐ MYTH: "Disclaimers like 'no copyright intended' make it fair use."
FACT: Disclaimers have no legal effect on fair use analysis.

☐ MYTH: "If it's on the internet, it's free to use."
FACT: Online availability does not waive copyright. Most internet content is copyrighted.

☐ MYTH: "Fair use means I can use anything for educational purposes."
FACT: Educational use is favored but not automatically fair. All factors must be weighed.