The statutory language of Fair Use (Section 107) is simple and seems clear, but it is intentionally vague and can be confusing. Nonetheless conducting a four factor fair use analysis is critical to any good faith fair use assertion. Without careful consideration of each of the factors you may inadvertently overstep the boundaries of fair use or you may miss opportunities the statute provides. The challenge in your analysis is to arrive at a conclusion you're comfortable with and that you believe is fair to all interested parties. Remember, the name of Section 107 is "fair use" and because there are no bright line markers that define it you must rely on your good sense and an "equitable rule of reason" to guide you to the safe harbors fair use can provide, or to seek permissions when your analysis leans in that direction.

Balancing the four factors results in an opinion about an uncertain matter. Your opinion may differ from that of others. The strength of any fair use assertion results more from a careful assessment of the facts surrounding each case and an honest consideration of the legitimate interests of users and owners alike than from any formula devised to arrive at a "right" answer to the question at hand. Begin by looking at the statute itself.

Section 107 - Limitations on Exclusive Rights: Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
   
   
2. the nature of the copyrighted work;
   
   
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   
   
4. the effect of the use upon the potential market for or value of the copyrighted work

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Next be sure you understand the meaning behind each of the factors. Use the Fair Use Evaluation Checklist to guide your consideration of the four factors. If you have questions don't hesitate to consult with library staff.

First Factor

Purpose and Character of the use: Nonprofit, educational, and personal uses are generally favored fair uses while commercial uses are less likely to be deemed fair use. Although educational use in and of itself will not assure that your use is a fair use, by the same token not every commercial use will fail as a fair use. Transformative uses, uses that result in the creation of a new work, with a new purpose and different character are favored as fair uses over uses that merely reproduce an original work. The more transformative a particular use is the less significant the other factors will be as they weigh against fair use.

Second Factor

The nature of the copyrighted work: Factual works, published works and scientific articles that are factual in nature are more likely to be considered available for fair use than are creative, imaginative, artistic, or unpublished works. Additionally certain "consumable" works, e.g. workbooks and standardized tests are not likely to be considered available for fair use.

Third Factor

Amount and substantiality of the portion used: The statute gives no bright line indication concerning how much of a work may be used under fair use but the implication is that use of the whole work is less likely to be considered a fair use. Thus, use of only a small portion of a work is favored. However in some circumstance e.g. uses like research, classroom use, personal use that already weigh in favor of fair use, you may use more of a work. In fact in such cases use of the entire work may be appropriate and allowable as a fair use if using that much is required to accomplish your purpose. A commercial use of the same material in the same amount could weigh heavily against fair use. Amount and substantiality is also a qualitative measure and at times use of even a small portion of a work may be considered too much to qualify as a fair use if that portion used is considered to be the "heart of the work".

Fourth Factor

Effect on the potential market for or value of the work: Generally the consideration for this factor is whether or not there is some economic harm to the owner of the copyright as a result of your use. Courts have established the availability of permissions or licenses as one of the potential values for copyrighted works. This factor alone, however, cannot determine whether or not a use is fair. Positioned as the fourth factor it is a bit easier to consider market effects. If the first three factors weigh in favor of fair use then market harm should carry less weight even when considering the permissions market, since the market is for permissions that are required. Conversely, if the first three factors are tipping the balance in favor of permission then market harm will carry more weight in the balancing of the factors.