What is a Fair Use Analysis and How is it Performed?
Answer
A fair use analysis is simply a weighing and balancing for the four factors:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for, or value of the copyrighted work.
A central tenet of the analysis is a flexibility. Congress wanted us to test and adapt for changing needs and circumstances. The law provides no clear and direct answers about the scope of fair use or its meaning in specific situations. Instead, we are compelled to return to the four factors and to reach reasoned and responsible conclusions about the lawfulness of our activities.
- If most factors lean in favor of fair use, the proposed use is probably allowed.
- If most lean the opposite direction, the action will not fit the fair use exemption and may require permission from the copyright owner.
- Reliance on a “reasoned” analysis is essential to claiming a good-faith effort.
Document your decisions is essential is supporting any claim of fair use. Th assist in this decision please see the Fair Use Check list linked below.