Applying Fair Use

The Four Factor Analysis

Factor 1: Purpose

The purpose of the use refers to whether the use is for an educational purpose, such as teaching or research, or whether the purpose is for a commercial activity. Another consideration is whether the use is transformative, whether the use changes the original work to serve a new purpose. Educational uses and transformative uses tend to weigh more favorably toward fair use.

Factor 2: Nature

The nature of the copyrighted work refers to whether a work is artistic and creative or whether it is factual in nature. A factual work tends to weigh more favorably toward fair use than an artistic and creative work.

Additionally, this factor takes into consideration whether the work in question has been published or is unpublished. An unpublished work weighs less favorably toward fair use, as one of the exclusive rights granted to copyright holders is the right to determine when their work is first published.

Factor 3: Amount

When determining the amount of the use one should perform both a quantitative and a qualitative analysis. The smaller the portion used, the more likely the use would be considered a fair use. However, even a very small portion of a work may not be considered a fair use if it were the “heart of the work,” or the most memorable aspect of the work.

Another important consideration in the third factor is whether the amount of the use is appropriate for a favored educational purpose. For example, in a nonprofit educational setting, the copying of an entire journal article for students in a class would likely be a fair use, but the same copying by a commercial copy shop would require permission.

Factor 4: Effect

The fourth factor considers whether, if the use of a work were widespread, it would deprive the copyright owner of income or negatively impact the market or potential market for the original work. Consequently, the more restricted the use, the less of an impact there will likely be on the market or potential market for the original work.

The fourth factor is also linked to the purpose of the use because a negative impact on the market is often presumed if a use is for a commercial purpose. However, if the use is for an educational purpose or is transformative, then a negative impact on the market may be more difficult to prove. The use of some works, like workbooks or educational videos, is rarely found to be fair because such works are produced specifically for the educational market.