TEACH Act Fair Use Checklist

The Fair Use provision, Section 107, of the U.S. Copyright Act has a four factor test for the use of copyrighted materials:

  1. The purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  4. The effect of the use upon the potential market for or value of the copyrighted work.

There is no simple test to determine Fair Use. Court rulings have/are examining and developing boundaries. This checklist is a guide for determining if an intended use falls within the Fair Use exception to the Copyright Law.

General Guidelines

Section 1: Purpose

  1. Is the use for teaching, research or scholarship in an accredited nonprofit educational institution?
  2. Is the use for criticism, comment, news reporting or parody?
  3. Is access limited to students enrolled in the course?
  4. Is the work directly related to the class session?
  5. Is the material being used in face-to–face instruction?
  6. Is the use of the material transformative or productive? (Does it use the work in a new way?)
  7. Is attribution properly given to the copyright holder?
  8. Is the work part of systematic mediated instructional activities?

For-profit, commercial, entertainment, systematic, improperly attributed use generally opposes Fair Use.

Section 2 – Nature

  1. Is it a published work?
  2. Is the copyrighted work out-of-print?
  3. Is the work in the public domain?
  4. Is it a factual or nonfiction based/nondramatic work?

Fiction and creative work (art, plays, films and novels) and unpublished works are less likely to be considered fair use.

Section 3 – Amount (*See specific information at the end of this list)

  1. Is only a reasonable and limited portion of fictional or dramatic work being used, comparable to that typically displayed in face-to-face classroom instruction?
  2. Is the portion used not central or significant to the entire work?

Large portions or portions that are the "heart of the work" are less likely considered fair use.

Section 4 – Effect

  1. Is the work lawfully made and acquired through purchase, gift or license agreement?
  2. Does this use have a significant effect on the market or potential market of the work?
  3. Are one or few copies made of printed materials?
  4. Is there a lack of a licensing mechanism?
  5. Does the material contain copyright ownership information or warning notice?
  6. Is the owner of the copyright marketing a similar product?
  7. Are the materials being used for multiple semesters?

Uses that replace a sale, are reasonably available by license or permission or are used repeatedly over a long term are less likely to be a fair use.

*The amount of a work that can be used varies by material type.

From legally acquired printed material up to 250 words of a poem, and 2,500 words or less of an essay, article or short story may be used. For longer works up to 10% of the work or 1,000 words (whichever is less) may be used.

Lawfully acquired videos or DVDs may be used for educational purposes in face-to-face teaching, but if portions are being used in multimedia or video projects, only 10% or three minutes (whichever is less) may be used and attribution must be given to the copyright holder.

When using single illustrations or photographs, up to 5 by one artist or photographer may be used. When using a collection of photographs or illustrations, not more than 15 images or 10% of the collection (whichever is less) may be used.

When a copyrighted musical composition is being used as part of an educational multimedia program produced by educators or students, only 10% or 30 seconds (whichever is less) of the composition may used.