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FACTOR 3: AMOUNT AND SUBSTANTIALITY OF THE PORTION USED IN RELATION TO THE COPYRIGHTED
WORK AS A WHOLE
Portion used is not central or significant to entire
work as a whole
Amount is tailored to acceptable educational
Large portion or entire work used
Portion used is important or the “heart” of the
work
Amount taken is more than is necessary
Under this factor, courts look at both the quantity and quality of the copyrighted material that is used. If the use includes a
large portion of the copyrighted work, fair use is less likely found; if the use employs only a small amount of copyrighted
material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain
circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair
because the selection was an important part: the “heart” of the work.
FACTOR 4: EFFECT OF THE USE UPON THE POTENTIAL MARKET FOR, OR VALUE OF, THE COPYRIGHTED
WORK
No significant effect on the actual market or
potential market of copyrighted work
Use stimulates market for original work
One or few copies made
No similar product marketed by the copyright
holder
Lack of licensing mechanism or out of print
User owns lawfully acquired or purchased copy
of original work
Restricted Access (Library or LMS)
User links to Internet content
Significantly impairs market or potential market
for copyrighted work or derivative
Could replace sale of copyrighted work
Numerous copies made
Repeated and/or long-term use that could
diminish market for original work
Reasonably available and affordable licensing
mechanism for use of the copyrighted work
Unrestricted access online or by other means
User copies and/or embeds Internet content
Required reading
Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright
owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the
original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it
were to become widespread.
FAIR USE ANALYSIS
SEND ELECTRONICALLY TO THE COPYRIGHT COORDINATOR AND RETAIN A COPY FOR YOUR FILES
___ Based on the fair use analysis and weighing of all the factors together, the use of the copyrighted
material falls within the fair use exception to copyright. Proceed with content use as planned.
__
_ Based on the fair use analysis and the weighing of all factors together, the use of the copyrighted material
does not fit within the fair use exception to copyright.
• Explore alternative content options (i.e. public domain, library licensed, Creative Commons licensed,
etc.). For assistance contact your EFSC subject and/or campus Librarian.
OR
• Permission for use must be obtained from the copyright holder. For assistance contact EFSC’s Copyright
Coordinator at 321-433-7251,
stubbem@easternflorida.edu.
Th
is Fair Use Analysis Checklist and all information presented are intended to be used as a guide, for
informational purposes only, and should not be construed as legal advice.
The Fair Use Analysis Checklist is licensed under CC-BY 4.0 and adapted from Columbia University Fair Use Checklist by Kenneth D. Crews (formerly of
Columbia University), Dwayne K. Buttler (University of Louisville), and further adapted by Penn. State University CC-BY 4.0.
