Purpose of Use

• The Supreme Court has indicated this factor is the primary indicator of fair use. If the use is transformative, that is, if the use adds additional insight and meaning to the original work, it is likely fair use. If someone has merely copied a portion of the work verbatim, without transforming it or adding to it in any way, the use is likely infringement.
  
  

Nature of Copied Work

• Courts also consider the type of work copied. Copying from a factual work or a news source is more likely to be fair use since the dissemination of facts and information is good for society. Copying from a fictional or artistic work does not implicate the same values, and thus is more likely infringement.
  
  

Amount Used

• The third fair use factor analyzes amount and substantiality of the copyrighted work taken in relation to the work as a whole. Taking a small portion of a work, say one page of a 300-page book, is usually considered fair use. No matter how small the amount, though, if what is taken represents the "heart" of the original work, that taking may still constitute infringement.
  
  

Market Effect

• Fair use will not deprive the copyright owner of the income he would have gained through exploiting his own work. This factor considers not only the existing market for the copyrighted work, but also potential markets the copyright owner has not yet pursued. For example, using a published book as the basis for a film without permission from the book's author would be infringement, in part because the use deprives the book's author of the ability to make her own film, or sell film rights, even if the book author is not a filmmaker herself.
  
  

Examples

• Section 107 lists several circumstances where copying is typically considered fair use, not infringement. Reproduction of a copyrighted work for education and research, news reporting, criticism or comment is not infringement. For example, a teacher may copy an article to distribute to his students. Similarly, a film reviewer may quote from the film's screenplay while reviewing the film. Parody has also long been considered fair use, despite the fact that a parody must take a substantial amount of the original work.
  
  

Warnings

• A judge must determine whether copying is fair usevintage bible book studio isolated image by dinostock from Fotolia.com
  
  When in doubt, obtaining permission from the copyright owner is always preferable to relying on fair use. The fair use factors are analyzed by a judge during an infringement case, provided the copier asserts fair use as a defense. The fair use analysis occurs on a case-by-case basis, and prior decisions vary greatly because fair use has an expansive meaning and is open to interpretation. A judge may determine your copying qualifies as fair use, and you will not owe license fees to the copyright owner, but millions of dollars in legal fees have been spent to reach this determination.