Fair Use: The Four Factors
1) What is the PURPOSE of the proposed use?
How will the copyrighted work be used? Uses that are educational and non-profit in nature are more likely to be considered fair than commercial uses of someone else’s original, copyrighted work. This factor often provides the basis for protection of uses such as scholarship or criticism. Another relevant characteristic of an intended use is whether the use is transformative or derivative.
2) What is the NATURE of the copyright work from which it will be used?
Is the work fictional or factual? Published or unpublished? Works of fiction are more likely to be protected since they are necessarily original creations of an author. Likewise, uses of unpublished works are less likely to be fair uses than uses of published works, since one tenet of copyright law is that an author has the right to determine whether and when his/her work is made available to the public.
3) What AMOUNT of the copyrighted work will be used?
Generally, the smaller the portion of a copyrighted work used, the more likely that use is to be considered fair–quoting a few lines from a book is usually “fairer” than reproducing an entire chapter. That said, there is no hard-and-fast standard (percentage, number of pages, etc.) for how much of a copyrighted work may be used fairly.
4) What is the EFFECT on the market or potential market if this item is used?
In order to be considered fair, the use of a copyrighted work cannot impinge upon a creator’s ability to make money from his/her own creation.