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:
- The purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- The effect of the use upon the potential market for or value of the copyrighted work.
Section 1: Purpose
- Is the use for teaching, research or scholarship in an accredited nonprofit educational institution?
- Is the use for criticism, comment, news reporting or parody?
- Is access limited to students enrolled in the course?
- Is the work directly related to the class session?
- Is the material being used in face-to–face instruction?
- Is the use of the material transformative or productive? (Does it use the work in a new way?)
- Is attribution properly given to the copyright holder?
- Is the work part of systematic mediated instructional activities?
For-profit, commercial, entertainment, systematic, improperly attributed use generally opposes Fair Use.
Section 2 – Nature
- Is it a published work?
- Is the copyrighted work out-of-print?
- Is the work in the public domain?
- 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Fiction and creative work (art, plays, films and novels) and unpublished works are less likely to be considered fair use.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)
- 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?
- 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
- Is the work lawfully made and acquired through purchase, gift or license agreement?
- Does this use have a significant effect on the market or potential market of the work?
- Are one or few copies made of printed materials?
- Is there a lack of a licensing mechanism?
- Does the material contain copyright ownership information or warning notice?
- Is the owner of the copyright marketing a similar product?
- 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.