Checklist for Conducting a Fair Use Analysis Before Using Copyrighted Materials

This checklist is a tool to assist you in applying the balancing test for determining whether you may make or distribute copies of works protected by copyright without having to obtain the permission of the copyright holder (see Note). It is recommended that you complete and retain a copy of this form in connection with each “fair use” of a copyrighted work.


Name:_________________________________________ Date:________________________________________

Class or Project:______________________________________________________________________________

Title of Copyrighted Work:______________________________________________________________________

Portion to be used (e.g. pages):_________________________________________________________________


Directions: Check all boxes that apply. For each of the four sections below, determine whether that factor favors or disfavors a finding of fair use. Where the factors favoring “fair use” outnumber the factors weighing against a finding of “fair use,” reliance on the fair use exception is justified. Where less than half of the factors favor “fair use,” permission should be obtained before copying or disseminating copies of the work. Where the factors appear evenly split or you have questions about interpretation, please feel free to contact Laura Hillock, Office of General Counsel, at 412-624-0216 or lhillock@pitt.edu.


PURPOSE OF THE USE

Favoring Fair Use
Disfavoring Fair Use
❑ Educational ❑ Commercial, entertainment or other
  • Teaching (including multiple copies for classroom use)
  • Research
  • Scholarship
  • Criticism
  • Comment
❑ Transformative or Productive use ❑ Non-transformative, verbatim/ exact (changes the work to serve a new purpose) copy
❑ Nonprofit use ❑ Profit-generating use

 


NATURE OF THE COPYRIGHTED MATERIAL

Favoring Fair Use
Disfavoring Fair Use
❑ Factual, nonfiction, news ❑ Creative (art, music, fiction), or consumable (workbooks, tests) work
❑ Published work ❑ Unpublished work

AMOUNT COPIED

Favoring Fair Use
Disfavoring Fair Use
❑ Small quantity (e.g. a single chapter or journal article or other excerpt consisting of less than10% of the work) ❑ Large portion or entire work
❑ Portion used is not central to entire work as a whole ❑ Portion used is central or the”heart” of the work
❑ Amount is appropriate to education purpose ❑ Includes more than necessary for education purpose

EFFECT ON THE MARKET FOR ORIGINAL

Favoring Fair Use
Disfavoring Fair Use
❑ No significant effect on the market or potential market for the copyrighted work ❑ Cumulative effect of copying would be to substitute for purchase of the copyrighted work
❑ One or few copies made and/or distributed ❑ Numerous copies made and/or distributed
❑ No longer in print; absence of licensing mechanism ❑ Reasonably available licensing mechanism for obtaining permission to use the copyrighted work currently available
  • e.g. CCC licensing or off-prints available
❑ Restricted access (limited to students in a class or other appropriate group) ❑ Will be making it publicly available on the Web or using other means of broad dissemination
❑ One-time use, spontaneous use (no time to obtain permission) ❑ Repeated or long-term use

NOTE: In many cases, the University Library may have a license to use material. A fair use analysis does not have to be conducted where the desired use is permitted under the terms of an applicable license. Similarly, other provisions of the copyright law cover such matters as library copying, in-class use, and distance learning. This checklist is not needed where other specific statutory provisions authorize the activity.


Used with permission and revised for use by the University of Pittsburgh from the “Checklist for Fair Use,” a project of the IUPUI Copyright Management Center, directed by Kenneth D. Crews, Associate Dean of the Faculties for Copyright Management; see Copyright and Other Intellectual Property Resources


For more information on Copyright and Fair Use in Higher Education, see our video on the subject here: Copyright & Fair Use in Higher Education.