Reprinted with permission from: Georgia Harper, University of Texas System, Office of General Council. Using the Four Factor Use Test. 2001. (Accessed July 16, 2001).
Using the Four Factor Fair Use Test
Most people think that the fair use test is difficult. Actually, it's not so much difficult as it is uncertain - susceptible to multiple interpretations. Two people can review the same facts about a proposed use and come to different conclusions about its fairness. That's because one must make many judgments in the course of weighing and balancing the facts.
Attorneys read the "judgments of judges" to learn how to make judgments themselves, but judges see things differently (one from another) too. Because "reasonable minds can disagree" about fair use, perhaps it is unrealistic to try to predict what a judge would think about a proposed use. But that's just what this test is about. Here's how it works:
With a particular use in mind,
Read each question and the comments about it
Answer each question about your use
See how the balance tips with each answer
Make a judgment about the final balance: overall does the balance tip in favor of fair use or in favor of getting permission?
The four fair use factors:
What is the character of the use?
What is the nature of the work to be used?
How much of the work will you use?
What effect would this use have on the market for the original or for permissions if the use were widespread?
FACTOR 1: What is the character of the use?
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Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission. The uses in the middle, if they apply, are very beneficial: they add weight to the tipping force of uses on the left they subtract weight from the tipping force of a use on the right.
Imagine that you could assign a numerical weight, on a scale from 1 to 10, to each use A nonprofit educational use other than the middle uses, for example, making a copy of a journal article for a university class, might weigh 5 in favor of fair use. But a nonprofit educational use that is also criticism, for example, the inclusion by a faculty member of a quote from another's work in a scholarly critique, would weigh even more in favor of fair use: about 6 or 7. That's because the uses in the middle are "core" fair uses the ones most dearly protected.
Even if these middle uses are for-profit, they weigh in favor of fair use: that's why they subtract from the weight against fair use of a commercial use. A commercial duplication of an article from a journal might weigh 5 against fair use. But a commercial commentary, while still weighing against fair use because it's commercial, would only weigh about 2 or 1. This is not to suggest that fair use can be precisely quantitatively analyzed. Numbers are just a tool to illustrate how the facts interact and affect each other. Actually, numbers wouldn't make the analysis any easier: copyright owners and users would have just as much trouble agreeing on weights as we have agreeing on any other judgment about fair use.
FACTOR 2: What is the nature of the work to be used?
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Again, uses on the left tip the balance in favor of fair use. Uses on the right tip the balance in favor of seeking permission. But here, uses in the middle tend to have little effect on the balance.
Where is your balance tipping after you have assessed the first two factors?
FACTOR 3: How much of the work will you use?
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This factor has its own peculiarities. The general rule holds true (uses on the left tip the balance in favor of fair use uses on the right tip the balance in favor of asking for permission), but if the first factor weighed in favor of fair use, you can use more of a work than if it weighed in favor of seeking permission. A nonprofit use of a whole work will weigh somewhat against fair use. A commercial use of a whole work would weigh significantly against fair use.
For example, a nonprofit educational institution may copy an entire article from a journal for students in a class as a fair use but a commercial copy shop would need permission for the same copying. Similarly, commercial publishers have stringent limitations on the length of quotations, while a student writing a paper for a class assignment could reasonably expect to include lengthier portions.
Where is your balance tipping after you have assessed the first three factors? The answer to this question will be important in the analysis of the fourth factor!
FACTOR 4: If this kind of use were widespread, what effect would it have on the market for the original or for permissions?
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Original is out of print or otherwise unavailable
No ready market for permission
Copyright owner is unidentifiable
This factor is a chameleon. Under some circumstances, it weighs more than all the others put together. Under other circumstances, it weighs nothing! It depends on what happened with the first three factors.
This factor poses a "circular reasoning" problem: we do the fair use analysis to find out whether we might owe the copyright owner some money for a particular use. But this fourth factor asks, "Is the owner losing money because of this use?" We don't know that yet because until we are through, we don't know whether the copyright owner is entitled to any money that he could then lose. If we knew that the copyright owner was entitled to some money and that he was therefore losing it because of our use, we would not be doing the fair use test we would just pay the money.
In the jargon of logic, if we have to "assume our conclusion" in order to reach it (as in "Assume for the moment that the use is not fair how much money is the copyright owner losing?"), our results are invalid (illogical). In practical terms, if a use would be a fair use except for the fact that it deprives the copyright owner of some royalties, that deprivation alone would not be sufficient to convert the otherwise fair use to an infringing one. On the other hand, if one could conclude that a use was unfair after reviewing the first 3 factors, then it would not be illogical to take lost royalties into account. This means that if a use is tipping the balance in favor of fair use after the first three factors, the fourth factor should not affect the results, even if there is a market for permissions, even if the owner would lose money because of the use.
On the other hand, if a use is tipping the balance in favor of asking for permission one need not "assume" it's not fair if the first 3 factors show that it is not a fair use. Add to that an active permissions market and the fourth factor will decisively tip the balance. Forget fair use. Get permission.
The facts in the middle illustrate circumstances that probably cause the fourth factor to have little or no effect.
After consideration of all four factors, does the balance for your use tip in favor of fair use or in favor of getting permission?