The Stanislaus State Library uses the checklist below (and also included in the Electronic Reserves request form) to help faculty weigh the four factors to determine whether Fair Use applies for Library Reserves materials.
Courts have rule that there are few exact bright lines which determine whether Fair Use is applicable in general terms. Instead, for each use of copyrighted materials, the user must weigh Fair Use individually based on the four factors - Purpose, Nature of Work, Proportion, and Effect on Market. The Library's checklist of Fair Use factors highlights some of the most common and important elements to consider.
| Characteristic | Weighs in Favor of Fair Use | Weights Against Fair Use |
|---|---|---|
| Commercial / Non-profit | The use is for the purpose of teaching in a non-profit educational institution. | The use is for a commercial purpose. |
| Purpose | The use is for criticism, comment, news reporting, parody or transformative presentation. | Mirror image copying without the addition of criticism, comment, news reporting or parody or transformation of presentation or use. |
| Educational purpose | The use is necessary to achieve an intended educational purpose. | The use is not necessary to achieve an intended educational purpose. |
| Distribution | Distribution is limited by password to students within a class for the term of the course. | Unlimited or uncontrolled distribution. |
| Characteristic | Weighs in Favor of Fair Use | Weights Against Fair Use |
|---|---|---|
| Fictional | The work is non-fictional in nature. | The work is fictional or highly creative (art, music, novel, film, play, poetry). |
| Opinion / Evaluative | The work is non-fictional in nature, and author opinion, subjective description and evaluative expression do not dominate the work. | The work is non-fictional in nature and, author opinion, subjective description and evaluative expression dominate the work. |
| Consumable | The work is a “non-consumable” work (e.g., standard book or similar). | The work is a consumable work (e.g., workbook or test). |
| Published | The original work has been published. | The original work has never been published. |
| Characteristic | Weighs in Favor of Fair Use | Weights Against Fair Use |
|---|---|---|
| Amount | A small amount such as one chapter or less of the work is used. | Large portion of the work/multiple chapters of the work are used. |
| Narrowly tailored | Amount used is narrowly tailored to accomplish a legitimate purpose in the course curriculum. | Amount used is more than necessary to accomplish a legitimate purpose in the course curriculum. . |
| "Heart of the work" | Portion used does not cover the “heart of the work." | Portion used is central to the work or the “heart of the work." |
| Amount / Market | A small amount of the work is used, and you have concluded that both the “effect on the market”(Factor 4) and the “purpose and character of the use” (Factor 1) favor fair use. | Large portion of the work is used, and you have not concluded that both the “effect on the market” (Factor4) and the “purpose and character of the use” (Factor 1) favor fair use. |
| Characteristic | Weighs in Favor of Fair Use | Weights Against Fair Use |
|---|---|---|
| Available License | A legally obtained copy is available (owned by the library), and a conveniently and efficiently accessible and reasonably priced digital license is not available. | The work as a whole is currently available for purchase, and a conveniently and efficiently accessible and reasonably priced digital license is available. |
| Available For Sale | The work as a whole is not available for purchase, and a digital license is not available. | The work as a whole is not available for purchase, and a digital license is available. |
Note: This checklist is based on the Fair Use Checklist by Georgia State University and the Fair Use Checklist listed in the California State University Handbook of Copyright and Fair Use.