Is it a fair use interactive card

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"Is it a fair use?" interactive card from the American Library Association features four  panels for each factor of fair use to help when considering if a use of a copyright protected work is fair.  The video shows how the card folds

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Copy for the is fair  use card by the American Library Association

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Reviewing the Four Factors

FAIR USE is an important right in our copyright law. It lets you use copyrighted works without permission. It serves the critical purpose of balancing the interests of rights holders and the public good, ensuring that the law’s purpose to “promote the progress of science and the useful arts” is achieved. But determining whether a use is fair requires a careful and honest balancing of four factors. We’ll ask you some questions to help guide you.

First Factor

Purpose and Character of the Use.  Think about what you want to do with the work.  Is your use non-commercial?

Non-commercial uses are those that do not bring the user commercial advantage, either directly, such as through sales or ticket revenue, or indirectly through increased attention, sales of other products that were influenced by the use, or cost avoidance. Non-commerciality favors a fair use finding.

Is your use transformative?

Transformative uses do just that. They TRANSFORM the work into something different than it was, often with a new purpose. If a use results in something substantially new, it could be transformative. Transformative uses are more likely to be fair. Parodies, indexes, and appropriation art are examples of transformative works that courts have found to be fair under appropriate circumstances.

Transformativeness Isn't Everything

Though courts have recently focused heavily on transformativeness as a key to fairness, non-transformative uses (those that can serve as a substitute for the original) can also be fair. The law explicitly calls out “teaching, including multiple copies for classroom use” as an example of a fair use. Non-transformative uses rely more on non-commerciality and the public benefit to the use than do transformative uses.

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Second Factor - Nature of the copyrighted work.  Think about the work, itself.

Is it primarily factual?

A more creative work (e.g., a poem) has more, or “thicker,” copyright protection. “Thinner” copyright protection applies to works that have less creative expression (e.g. non-fiction works).  The “thinner” the copyright protection of a work, the more likely that its use will be fair.

Is it published?

Traditionally, unpublished works have a thicker copyright, due to the special recognition that has long been given to the author’s right to first publication; however, courts also have recognized limitations on that right and acknowledged that use of unpublished works is not presumptively unfair.

Is that all there is?

The second factor could also take into account other elements, such as whether the work was intended for sale, is out-of-print or commercially unavailable, or is an “orphan work” (the author is unknown or can’t be found). So far, the courts have restricted discussions of the second factor to the factual/creative content and publication status, but there may be more to consider.

There is no maximum!  Even the use of an entire work can be fair, especially if the use is transformative.  

There is no minimum!  Even the use of a small amount of work can be unfair under some circumstances.  You have to weight all the factors.

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Third Factor

Amount and Substantiality of the portion used in relation to the copyrighted work as a whole.  Think about HOW MUCH of the work you want to use. Have you used only what you need in order to achieve your purpose? Can you achieve your purpose without it?

Courts not only look at how much of a copyrighted work you’ve used; they also look at how you’ve used it. Using only what is needed is favored, though that can be a substantial amount (even the entire work). When a use is transformative, more latitude is given to justify the amount used.  In non-transformative cases, the amount used is given more scrutiny, and courts are more concerned with whether your use might affect the market for the work.

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Fourth Factor

Effect of the use upon the potential market for or value of the copyrighted work.

Think about the MARKETS for the copyrighted work 

Could your use result in lost sales? What would happen if everyone used the work as you plan to?

One must consider existing and potential markets, including secondary markets such as translations, movie rights, or images on coffee mugs. Uses that may result in lost sales for established markets or that could were the practice widespread are less likely to be fair. This is especially true when the market for the work is fragile, such as works that are useful only to a small number of people, or when the market is very current, as in a recently released blockbuster movie. Uses that cause minimal harm, or that could generate transformative markets weigh more heavily in favor of fair use. Markets created by transformative uses can create a new market that is not controlled by the original rights holder.

Resources for Further Study

ARL Code of Best Practices for Fair Use in Academic Libraries:  Pierre Leval “Toward a Fair Use Standard,” Harvard Law Review 103, 5 (Mar. 1990), pp. 1105-1136. Rob Kasunic “Is That All There Is? Reflections on the Second Fair Use Factor,” Columbia Journal of Law & the Arts 31, 4 (Summer, 2008), pp. 529-570. Columbia University Fair Use Checklist:  Authors Guild v. Google (2nd Cir., 2016) Bill Graham Archives v. Dorling Kindersley Ltd., 448 F 3rd., 605 (2nd Cir, 2006)

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