Fair Use Analysis Checklist

The University of Rochester acknowledges and encourages the appropriate use (i.e., reproduction, distribution, performance, and display) of copyrighted works and materials for teaching, scholarship, and research purposes consistent with federal copyright law and the standards for fair use. Reliance upon the fair use exception should be limited to those cases that clearly meet the fair use balancing test in favor of the intended use, and are carefully documented to support that conclusion.

Section 107 of the copyright law sets forth four factors to be considered, weighed, and balanced when making a determination of fair use. These four factors appear below in a format to assist in making this determination. In all cases, considerations on the left side tend to favor fair use while considerations on the right side tip the balance in favor of seeking permission. All four factors must be taken into account before reaching a conclusion.

General Information

The Four Factors

2. The Purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.


Fair Use	Seek Permission
Nonprofit	Commercial
Teaching
Scholarship/ research
Criticism or commentary
Clinical/ healthcare
Parody

Again, uses on the left tend to tip the balance in favor of fair use while uses on the right favor seeking permission.

2. The nature of the copyrighted work


Fair Use	Seek Permission
Factual	Imaginative
A mixture of factual and imaginative	Consumable materials: workbooks, answer sheets, etc.

Uses on the left tend to tip the balance in favor of fair use. Commercial use tends to tip the balance in favor of seeking permission from the copyright holder.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole


Fair Use	Seek Permission
Only limited and reasonable portions will be used	An excessive, or unreasonable amount of the work is used
The portion used is not the “heart” of the work (the portion considered most central to the work as a whole)	The amount used clearly exceeds established fair use guidelines [name guidelines]
Only the amount required to achieve the stated, socially-beneficial purpose or objective will be used (be that educational, artistic, scholarly, journalistic, etc.)	portion of the work greater than what is needed to achieve the stated purpose or objective is used
If the entire work is to be used (which would NOT favor the use being fair), it is clear that no less than the entire work will achieve the stated purpose of the use (e.g. use of a photograph, a short poem, an article, etc.)	The entire work, or the “heart” of the work, is used (the “heart” is the portion considered most central to the work as a whole)

The amount of material should be measured both quantitatively and qualitatively. Quantity should be evaluated relative to the length of the entire work and the amount needed. The reproduction of an entire work weighs against fair use. A reproduction that is relatively small, but still uses the "heart" of the work will weigh against fair use.

4. The effect of the use upon the potential market for or value of the copyrighted work

Fair Use	Seek Permission
The item is not commercially available (out of print, no licensing available, etc.)	The work is commercially available (in-print, clear licensing available, etc.) and the use substitutes for purchasing or licensing a copy
A market for the work as it will be used is absent or is negligible & use of the work will have little or no negative impact on its value or potential value	Use of the work has the potential to damage the market for the work or its potential value (reduce profits, damage or put market at jeopardy, etc.)
The copyright holder cannot be identified or cannot be found after a reasonable search, or, once found does not respond (one way or another) to requests for permission to use the work	The copyright holder denies a request for permission to use the work
Use of the work minimizes the potential for unauthorized use that could impact its value (i.e. steps are taken to ensure the content is not used outside of the stated purpose or audience)	The work is used in a way that would allow for unauthorized use that could negatively impact on its value
Use of the work has the potential to create or improve the market for the work	The work already has an established market, or the clear potential for a future market as it is being used
The copy of the work to be used is a legal copy	The copy of the work to be used may not be a legal copy
Proper attribution will be given with the intended use	Proper attribution will NOT be given with the intended use

Reproduction that substitutes for purchase of the original weighs heavily against fair use. This factor is closely linked to the other factors. If a use is tipping the balance in favor of fair use after the first three factors are evaluated, lost permission fees need not be considered. However, if after the first three factors, the balance is tipping toward seeking permission, potential lost permission fees must be taken into account in determining market impact.

Determination

Based on the fair use analysis completed above, I have determined that my use of the material referenced above falls within the fair use exception. To the extent that I have made a good faith determination of fair use, I understand that the University will defend and indemnify me against any resulting legal claims or challenges.

I further understand that if I have intentionally falsified information on this form, or if my determination of fair use was not made in good faith, I may be subject to personal liability for copyright infringement.

Based on the fair use analysis completed above, I have determined that my use of the material referenced above does not fit within the fair use exception. I will obtain permission before using the material.

Signature _______________________________________________

Date _________________

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