2.6.12.3: Evaluating Your Case for Fair Use
Evaluating Your Case for Fair Use
Movie: Follow the Four Factors of Fair Use
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Copyright law lacks specificity, so it can be difficult to determine whether or not a particular use may qualify as fair use. Fortunately, there are a number of useful tools available online to help you consider the four fair use factors as they apply to your intended use.
A Fair Use Checklist can be very helpful for conducting a fair use analysis. The checklist indicates various criteria for each factor which have been found in a court of law to favor or oppose a finding of fair use. It is highly recommended that you use a fair use checklist to evaluate the strength of your argument for fair use.
Movie: Follow the Four Factors of Fair Use
Watch this video to see a fair use analysis using a fair use checklist.
An interactive or media element has been excluded from this version of the text. You can view it online here: https://ohiostate.pressbooks.pub/choosingsources/?p=635
In a fair use analysis, you consider each of the four factors in light of your proposed use and determine whether your use is favoring or opposing fair use for that factor.
You then weigh all four factors together. You cannot rely on a numerical tallying of criteria in favor and opposing fair use in order to make a determination. You must consider all four factors holistically and determine if, taken as a whole, they favor or oppose fair use, and to what extent (e.g. strongly favoring fair use, slightly favoring, etc.).
There are other tools in addition to the checklist that can help you conduct a fair use analysis. The American Library Association has developed a tool called the Fair Use Evaluator .
Visit the Fair Use Checklist and review the criteria for each of the four factors.
While it is important to perform a fair use evaluation for each and every use of copyrighted material, there are some general rules that can often help you to strengthen a fair use claim.
Below are a few tips to consider when relying on the fair use exception in order to use copyrighted works in your endeavors.
If you are in doubt about your fair use claim, either reassess and make changes to your proposed use in order to make a stronger claim or ask for permission to use the copyrighted material – It is much easier to make changes or ask for permission before you use copyrighted material than to get hit with an infringement claim and have to make changes or face a law suit after your use.
A number of groups have developed Codes of Best Practices in Fair Use for different types of activities. These codes propose examples of fair use within specific communities of practice. Below are links to some of these Codes of Best Practices.