If the quick guides to fair use are insufficient for your needs, and there is no best practice statement that you feel you can reasonably adapt to your situation, you can try your hand at using the fair use test directly.
With a particular use in mind:
Factor 1: What is the character of the use?
| More favorable to fair use | Less favorable to fair use | |
| Criticism | Nonprofit | Commercial |
| Commentary | Educational | |
| News reporting | Personal | |
| Parody | ||
|
Repurposing a work, providing a new context, or otherwise adding value |
Uses on the left are examples of transformative purposes that tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle support a determination of fair use, even if there is no transformative purpose. They also add weight to a transformative fair use claim. But even commercial uses can be fair when they involve repurposing of content, or adding value to it, such as but not limited to parody, criticism and commentary.
The uses on the left are strongly transformative when they use a work in a new way and serve a new market from the one the original was intended to serve. For example, using a small image of a poster to illustrate a timeline is transformative; creating a parody of a song is transformative; scholarly criticism that quotes to illustrate a point is transformative; a model's glossy photo used in a news report is transformative. All of these are examples of cases where commercial uses of an appropriate amount of another's work were found to be fair uses.
Factor 2: What is the nature of the work to be used?
| More favorable to fair use | Less favorable to fair use | |
| Fact | Mixture of fact & imaginative | Imaginative or highly creative |
| Published | Unpublished |
Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission. But here, uses described in the middle tend to have little effect on the balance, more or less cancelling out this factor entirely.
Which way is your balance tipping after assessing the first two factors?
Factor 3: How much of the work will you use?
| More favorable to fair use | Less favorable to fair use |
| Small quantity | More than a small amount |
| An appropriate amount for a transformative purpose |
This factor has its own peculiarities. The general rule holds true (uses on the left tip the balance in favor of fair use; uses on the right tip the balance in favor of asking for permission), but if you conclude under the first factor that your purpose is transformative, you can use an amount of the work that is appropriate to accomplish that purpose. Notice how nuanced the interaction of these factors can be: A nonprofit transformative use of a whole work might weigh in favor of fair use if the amount is appropriate for the purpose. A commercial use of a whole work would normally weigh significantly against fair use, unless the whole work were the appropriate amount to accomplish that purpose. The examples provided under factor one above illustrate this.
Typically, a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use; but a commercial copyshop would need permission for the same copying. Similarly, commercial publishers normally have stringent limitations on the length of quotations, while a student writing a paper for a class assignment could reasonably expect to include lengthier quotes.
Which way does your balance tip after assessing the first three factors? The answer to this question may be important in the analysis of the fourth factor.
Factor 4: If this kind of use were widespread, what effect would it have on the market for the original or for permissions?
| More favorable to fair use | Less favorable to fair use | |
| Proposed use is transformative and not merely duplicative and amount used is appropriate for transformative purpose | Password protection and/or technological protection | Use is not transformative |
| Proposed use is not transformative, but amount is small | Competes with (takes sales away from) the original | |
| Original is out of print or otherwise unavailable | Avoids payment for permission (royalties) in an established market for licenses of the type that you desire | |
| Copyright owner is unidentifiable | ||
| No available license of the type you want |
The first three factors affect the analysis of this factor. In most cases, three things come together here: whether your use is transformative; whether the amount you used is appropriate for the transformative purpose; and whether there is an efficient and effective market offering a license to use the work in the way you want to use it.
As always, uses on the left weigh in favor of fair use; those on the right weigh in favor of getting permission. In the middle, uses will reduce the risk associated with relying on fair use when there is a market for that work by protecting the work from possible negative effects of exposure.
In the last 15 years we have seen that courts will tend not to take the availability of licenses into account if the proposed use is transformative and uses an appropriate amount. But if the use is not transformative, the market matters a lot. Please review the Georgia State case to see how non-transformative uses are viewed by our courts.
In summary, transformative uses of appropriate amounts tend to be fair even if there is a license available. Non-transformative uses of materials for which there is a license of the type you need, readily available, require that you use only small parts, and employ protections described in the center of the paradigm above to reduce the risk of harm to the copyright owner.
How do you feel about the balance for your use after consideration of all four factors?
More information
If you are associated with the University of Texas at Austin as faculty, staff, or student and have questions about the application of the four factor fair use test, please contact Colleen Lyon.
