Weighing and Balancing the Factors

A central principle of the fair use analysis is flexibility. The fair use doctrine is designed to be adaptable to changing needs and circumstances, even those that are unforeseen. The law provides no clear and direct answers about the scope of fair use or its meaning in specific situations. Instead, we are compelled to return to the four factors and to reach reasoned and responsible conclusions about the lawfulness of our activities. Reasonable people may differ widely on the applicability of fair use, but any reliable evaluation of fair use must depend upon a reasoned analysis of each of the four factors. In general, if most factors lean in favor of fair use, the proposed use is likely fair; if most lean the opposite direction, the proposed use will likely not fit the fair use exception and may require permission from the copyright owner. However, exceptions always apply, and it's unwise to take an "arithmetic approach" when evaluating the fair use factors (Cambridge University Press v. Albert, 906 F. 3d 1290 (11th Cir. 2018)).

The law permits some uses of materials protected by copyright when a reasoned analysis concludes the use qualifies for Fair Use. Use the Checklist for Fair Use to help determine if portions of, or all of, the copyrighted work can be used without permission. Contact the Copyright Licensing Office if you have questions or need assistance. If desired, review the completed checklist with the Copyright Licensing Office. Reach us by phone at 801-422-3821 or in person at 3760 HBLL.