One of the most important considerations that weighs heavily in favor of fair use is when the use of a work is "transformative."
At its most basic, the intent is that if a new use of a copyrighted work does something different with the work, rather than replacing it, then it has been transformed. If a use of a copyrighted work simply replaces the existing work, then it is a "copy." When the use of the copyrighted work "transforms" the original into something new, then it moves beyond the copying/reproduction of the work.
This is especially critical as the transformative use of a work does not cause market harm to the copyright holder, even if they could have been paid for the work, because the use of the work is no longer a substitute for the original. It has been transformed into something new.
The Fair Use Checklist developed by Kenneth D. Crews (formerly of Columbia University) and Dwayne K. Buttler (University of Louisville) now maintained by Columbia University Libraries provides a convenient approach to assist users of copyrighted works in determining if their activities are within the limits of fair use as specified under U.S. copyright law (Section 107 of the U.S. Copyright Act). The following statements are adapted from the Columbia University Libraries website.
BENEFITS OF USING THE CHECKLIST
A proper use of this checklist should serve two purposes. First, it should help you to focus on factual circumstances that are important in your evaluation of fair use. The meaning and scope of fair use depends on the particular facts of a given situation, and changing one or more facts may alter the analysis. Second, the checklist can provide an important mechanism to document your decision-making process. Maintaining a record of your fair use analysis can be critical for establishing good faith; consider adding to the checklist the current date and notes about your project. Keep completed checklists on file for future reference.
THE CHECKLIST AS A ROAD MAP
As you use the checklist and apply it to your situations, you are likely to check more than one box in each column and even check boxes across columns. Some checked boxes will favor fair use and others may oppose fair use. A key issue is whether you are acting reasonably in checking any given box, with the ultimate question being whether the cumulative weight of the factors favors or turns you away from fair use. This is not an exercise in simply checking and counting boxes. Instead, you need to consider the relative persuasive strength of the circumstances and if the overall conditions lean most convincingly for or against fair use. Because you are most familiar with your project, you are probably best positioned to evaluate the facts and make the decision.
This checklist is provided as a tool to assist you when undertaking a fair use analysis. The four factors listed in the Copyright Statute are only guidelines for making a determination as to whether a use is fair. Each factor should be given careful consideration in analyzing any specific use. There is no magic formula; an arithmetic approach to the application of the four factors should not be used. Depending on the specific facts of a case, it is possible that even if three of the factors would tend to favor a fair use finding, the fourth factor may be the most important one in that particular case, leading to a conclusion that the use may not be considered fair.
The following resources may be helpful to you in understanding fair use and the four factor test:
This document from the Association of Research Libraries provides guidance for academic libraries on fair use.
The U.S. Copyright office offers a continually updated index of lawsuits addressing fair use.
Stanford Libraries have an excellent resource on development in fair use law.
The Association of Research libraries published an info-graphic on the myths and facts of Fair Use in February 2017.
The Harvard university Office of Scholarly Communication published a clear info-graphic on Fair Use in 2017. This information is valuable for anyone seeking additional information on Fair Use.
This checklist can help you weigh the different sides of a four-factor fair use analysis.
These codes can assist you in determining if your use of a work has a preexisting code of best practice already established such as for sound recordings, journalism, online video, use of images, etc.
Inside Higher Ed article discussing the Georgia State e-reserves federal lawsuit on copyright violations. Topics include the standard of 10%, the four factors of fair use, and future implications for instructors and librarians.