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Use the Four Factor Test to avoid violating Fair Use

The Four Factor Fair Use Test

Fair Use is a subtle concept and can only be decided in a federal court. However, if the use of the copyrighted materials has an educational purpose, is relevant to the lesson, part of classroom instruction and not broadcast or published for general consumption you are most likely protected by fair use.

Here are the four factors in a nutshell (for more information, we recommend checking the annotated resources for Fair Use)

Factor 1: The purpose and character of your use

Have you added new meaning or expression to the material you have taken from the original?

Has value been added to the original by creating new information, new aesthetics, new insights and understandings?

Fair Use generally favors the addition of new meaning and value.

Factor 2: The nature of the copyrighted work

Was the original work published or unpublished?

Was the original work factual or fictional?

Fair Use generally favors using published works that are also factual.

Factor 3: The amount and substance of the portion taken

How much material are you taking?

Are you taking the "heart" of a work?

Fair use generally favors using a little (10% is a rule of thumb) and not the "heart" of the work (its most memorable aspect).

Factor 4: The effect of the use upon the potential market

Does this use deprive the copyright owner of income?

Does this use undermine the market (either new or potential) for the copyrighted work?

Depriving a copyright holder of income is likely to trigger a law suit.

Most of the time copying is not legally a fair use. Unless you have the author's explicit permission, copying usually violates the author's copyright.

Practice it now:

Decide if any of these practices violate fair use guidelines:

A teacher makes a single backup copy of DVD's purchased for her history class.

A teacher places recordings of classical music intended for homework on the school web site.

On the spur of the moment, a teacher copies whole chapters from a new literature textbook for her class to read.

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