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Copyright and Fair Use: Fair Use

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About Fair Use

Fair use is a legal provision in the United States that allows use of copyright protected works for limited purposes in certain circumstances. Generally speaking, there are four factors to consider regarding the intended use of the work, and each factor should be considered and weighed as to whether it favors fair use or not. It is important to note that there is no absolute formula or a universal checklist in order to be certain if fair use applies. There are checklists, flowcharts, and guides available that can help outline the factors, but they should only be used as guides, not as a mathematical tally that gives some sort of certainty. Fair use is determined on a case-by-case basis, and determining such is a combination of art and science, informed decision making, and ultimately, a judgment call. 

Factor 1: Purpose and character of the use:

Favors Fair Use Weighs Against Fair Use
Educational use, scholarship, non-commercial Commercial use, for profit use
Transformative use (something new results from the use, some new value is added with use) Wholesale use without adding to or changing the work used

Factor 2: Nature of the work:

Favors Fair Use Weighs Against Fair Use
Work is factual in nature, less creative Work is more creative in nature
Work is published Work is unpublished

Factor 3: Amount and substantiality of the work used:

Favors Fair Use Weighs Against Fair Use
Small(er) portion used Large(r) portion used
Portion used is not a defining portion of the work Portion used includes the defining portion of the work

Factor 4: Effect of the use upon the potential market for or value of the copyrighted work:

Favors Fair Use Weighs Against Fair Use
Little potential harm for the market demand for the work Greater potential for harm to the market demand for the work
Value of original work is largely unaffected Value of original work is diminished

See below for sources for this information and to learn more

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