Fair use is a doctrine of U.S. copyright law which gives exceptions to certain uses of copyrighted materials, which would otherwise be copyright infringement. To determine if fair use applies to your use, the four fair use factors must be applied.
This checklist also available as a Word document you can download and type into.
Weighs in Favor of Fair Use |
Weighs Against Fair Use |
☐ The use is for the purpose of teaching in a non-profit educational institution (including multiple copies for classroom use). |
☐ The use is for a commercial purpose |
☐ The use is for criticism, comment, news reporting, or parody; or the use is transformative. |
☐ Mirror image copying without the addition of criticism, comment, parody, or transformation of presentation or use. |
☐ The use is necessary to achieve an intended educational purpose. |
☐ The use is not necessary to achieve an intended educational purpose. |
☐ Distribution is limited by password to students within a class for the term of the course; students acknowledge copyrighted nature of the materials. |
☐ Unlimited or uncontrolled distribution |
Give this factor less weight when the work is published, non-consumable, and non-fictional
Weighs in Favor of Fair Use |
Weighs Against Fair Use |
☐ The work is non-fictional (factual) in nature. |
☐ The work is fictional or highly creative |
☐ The work is non-fictional in nature, and author opinion, subjective description and evaluative expression do not dominate the work. |
☐ The work is non-fictional in nature and author opinion, subjective description and evaluative expression dominate the work. |
☐ The work is “non-consumable” |
☐ The work is “consumable”, e.g. a workbook or test |
☐ The original work has been published |
☐ The work has never been published. |
There is no set rule regarding amount used (e.g. rules such as 10% or 1 chapter have been rejected by the courts). You should avoid using a portion that is the “heart” of the work.
Weighs in Favor of Fair Use |
Weighs Against Fair Use |
☐ A decidedly small amount such as one chapter or less of the work is used. |
☐ Multiple chapters of the work are used. |
☐ Amount used is narrowly tailored to accomplish educational objective in course curriculum. |
☐ Amount used is more than is necessary to accomplish educational objective in course curriculum. |
☐ A small number of chapters of the work are used, and you have concluded that both the effect on the market (factor 4) and the purpose and character of use (factor 1) favor fair use. |
☐ Multiple chapters of the work are used, and you have not concluded that both the effect on the market (factor 4) and the purpose and character of use (factor 1) favor fair use. |
Note: you must own a lawfully acquired or purchased copy of the original work that is used: this may be a personal copy or a copy owned by the institution (e.g. a library copy) – this may NOT be a copy obtained through Interlibrary Loan or other rented or borrowed source.
This factor carries the most weight, but is not so weighty that it determines fair use analysis. Favorable use of the first 3 factors may outweigh unfavorable results here.
Weighs in Favor of Fair Use |
Weighs Against Fair Use |
☐ The work as a whole is currently available for purchase, and a conveniently and efficiently accessible and reasonably priced digital license is NOT available. |
☐ The work as a whole is currently available for purchase, and a conveniently and efficiently accessible and reasonable priced digital license IS available. |
☐ The work as a whole is not available for purchase, and a digital license is NOT available. |
☐ The work as a whole is not available for purchase, and a digital license IS available. |
Based on the University System of Georgia “Fair Use Checklist”. Used with permission.
CMSI has developed an alternative 2-factor method specifically for educators determining whether the copying they want to do would be considered fair use. If you can answer "yes" to both of these questions, a court would likely rule the use if fair:
Taken from CMSI's "Best Practices in Fair Use for OER"
The Center for Media & Social Impact (CMSI) has been developing Codes of Best Practices for different users and disciplines which are extremely helpful. We recommend you look through these to see if your discipline is represented.
Q: What about images, video clips, or other multimedia? Don't special rules apply?
A: The Fair Use doctrine makes no distinctions between different media or formats. Therefore the four fair use factors can still be applied to use of multimedia. However, some common uses listed below are typically considered fair use:
Q: The rules keep repeating to use a "lawfully acquired copy". What exactly is a "lawfully acquired copy"?
A: In the case of educational use, it means copying the portion of the work you use from a personal copy or a college-owned copy (often a Library copy). Specifically, copying a portion from a rented or interlibrary loaned copy is *NOT* using a lawfully acquired copy, because it was only borrowed, not owned by the instructor or the institution.
A: Yes, just use the "Share" button in YouTube (or other online video source) and use the direct link or the embed code to share in Talon. Also, it's good practice not to link to a video that doesn't appear to have been posted by the owner. It's likely not a legal copy. Remember that the library can often purchase a copy of a published video, such as an episode of a series, a movie, or a documentary.
A: You can typically contact Kirkwood's Media Services for assistance with this. The Library can sometimes purchase streaming video as well, depending on the title.
A: No. The TEACH Act states that the original copy must be owned by the individual or by the college.
A: This question is more complicated. First, check the usage license on the video. It is possible to find videos on YouTube that are open licensed, which allows anyone to make a copy and edit it. However, there are a couple of other options when the video is not open licensed:
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