Factor 1: Purpose and character of the use
- For what reason (educational/non-profit/commercial) will the work be used?
- Personal, non-profit, and educational (especially in a classroom setting) use weighs is favor of fair use, although that alone does not justify it.
- Is the work being used for parody, commentary, or criticism?
- Use of the image for a new purpose or in a new way weighs in favor of fair use.
- Is the work being used to create something new or add value to the work?
- If your use of an image is "transformative," you can more likely claim fair use than if you were to simply copy the work.
Factor 2: Nature of the work
- Does the work contain facts (like a biography) or is it imaginative (like a novel)?
- Most images are creative works, which weighs against fair use.
- Is the work published or unpublished?
- Use of published works favors fair use; use of unpublished works does not favor fair use. Many images posted online are "unpublished" works, since they have not been distributed to the public by sale.
Factor 3: Amount of the copyrighted work used
- What amount of the work do you want to use?
- There are no clear guidelines for what amount of a work constitutes fair use; it must be considered in relation to the whole. In general, the less used, the more likely you can claim fair use. Use of entire images (which is usually the case), weighs against fair use.
- Is the amount you want to use the "heart" of the work?
- Use of the defining or signature part of a work weighs against fair use. Since the whole image is usually used, the "heart" of the work is used, which may weigh against fair use.
- Are you using only what is absolutely necessary?
- The less used, the more likely you can claim fair use. Use of extraneous material weighs against fair use.
Factor 4: Effect of the use upon the market
- Will your use of the work cause the copyright owner to lose income?
- If your use prevents people from purchasing the copyright holder's work, it is difficult to argue fair use.
- Does your use only produce limited copies? Is it easy to reproduce your use?
- Digital copies that are accessible to many people weigh against fair use. For instance, use of images on a website weighs against fair use.
- Have you used this item in previous semesters?
- If you have used the item in previous semesters without getting permission, it is difficult to claim fair use, because repeated use of an item without permission may have an effect upon the market.
- Is there a way to get permission to use the work?
- The easier it is to get permission from the copyright holder, the harder it is to claim fair use. If you have been unsuccessful contacting the copyright holder (as you might in the case of orphan works), you can more easily claim fair use.
