Fair Use Reasoning

Determining Fair Use for educators and students is a process requiring critical thinking and thoughtful reasoning.

"Fair use cannot be reduced to a checklist.  Fair use requires that people think." -- Carrie Russell

(Russell, Carrie. Complete Copyright. Washington, DC: American Library Association, 2004. Print.)

What does the critical thinking and thoughtful reasoning involve to determine fair use?

• Define the purpose of your project.
• What are you teaching?
• What critical thinking and reasoning skills are integral to the use of copyrighted material to be used in the project?
• Identify the target audience.
• What group(s) of people will view/hear/read the final result?
• How will the final result be distributed?
• Describe the copyrighted material to be used in the project.
• Is the copyrighted material printed, an artistic creation, an idea?
• Describe why it is necessary to use this copyrighted material.
• Why use this material rather than something else?
• Describe how the copyrighted material will be used.
• What was the purpose of the original?
• Did your use "transform" the material taken from the copyrighted work?
  
• Did you use the work for a different purpose than that of the original?
• Explain why your work does not just repeat the intent and value of the original source material.
• Describe the amount of the original you used.
• Did you use only the amount you needed to accomplish your purpose?
• Why did you choose the amount you chose?
• Will your use of this work cause economic harm to the copyright owner and affect their ability to profit from their work?
  

Using the ideas and questions above will help guide your critical thinking and thoughtful reasoning as you determine if the copyrighted material you seek to use meets the fair use exemption of the copyright law.  Not everyone may come to the same conclusion, but the Copyright Act of 1976 includes a reasonableness standard.  The reasonableness standard applies to employees of a nonprofit educational institution, library or an archive who are acting within the scope of their employment.  This means that if the user of the copyrighted material made a good faith, reasonable effort to determine fair-use, then the courts will set any statutory damages at zero.

Below is a form to help guide educators and students through the thought process of determining fair use. You can Download this form. (Download it from this page, check our downloads location for it. Fill it out and save it. If you fill out the form within the Google site you cannot save your information.)  We recommend that educators and students keep a copy of the completed form.  If you were ever asked to justify your use of the copyrighted materials, you will be ready to share your thought process.