A Fresh Look at the Fair Use Checklist

The following essay is scheduled for publication in: The Copyright & New Media Law Newsletter, Issue 1, 2012 Volume. For more information, see: http://www.copyrightlaws.com/the-copyright-new-media-law-newsletter/  

A Fresh Look at the Fair Use Checklist

By Kenneth D. Crews This work is licensed under the Creative Commons, Attribution-NonCommercial-ShareAlike 3.0 United States License.

The meaning of fair use in American copyright law has been a challenge since at least 1841, when Justice Joseph Story articulated the concept in a case involving the published papers of former president George Washington.¹  In his quest for some notion of allowable use of copyright-protected works, the celebrated jurist expounded on a set of variables that seemed to make good sense for the case at hand.  Numerous court rulings over the subsequent years relied on the 1841 doctrine and expanded on factors that Justice Story isolated.  Those factors remain the foundation of today’s doctrine of fair use.  We continue to give them meaning when determining how much of a copyright-protected work one may photocopy, download, cut and paste, and convert into a music video mash-up.

The Four Factors of Fair Use

The factors of fair use are today embodied in Section 107 of the US Copyright Act, and they are the foundation of a fair use analysis.²  In 1976, when Congress fully revised the Copyright Act, Congress chose to include fair use in the statutes in order to assure that it would survive and be applicable to the rapidly changing nature of expressive media.  The four factors in the statute are:

•    The purpose of the use. •    The nature of the work used. •    The amount or substantiality of the work used. •    The effect of use on the value of or potential market for the original work.

From a consideration of these four factors come well-reasoned decisions about fair use.  In practical reality, court decisions give these factors meaning in the context of the specific case and weigh the factors in the balance in order to determine the overall “fairness” of the case.  In many ways, that is exactly what individuals need to do in order to determine whether their activities are within fair use—long before a judge could ever have a chance to express his or her opinion.

The Need to Evaluate Fair Use

Although fair uses of copyright-protected works occur thousands or millions of times each day, relatively few questions are actually brought to court.  Most matters are small and not worth the litigation.  Other disputes are resolved or settled without judicial intervention.  Frankly, an abundance of copying and sharing of works is occurring at such a low level that it is generally or pragmatically out of the reach of copyright owners.  Some owners just accept it.

Nevertheless, in many of our pursuits we frequently need to evaluate whether an activity is or is not within the law.  Ample resources about fair use are available for anyone who wants to learn about the factors and their meaning.  Fair use also has become the subject of policy disputes in academia, the halls of Congress, and Geneva where many international treaties are negotiated.  On a daily basis, most fair use decisions occur at home, and in the office, and in our educational institutions, and in our libraries.  Many of those activities demand a real decision, rather than allowing it to slide unseen.

The “Checklist For Fair Use”

The “Checklist for Fair Use” is a tool intended to help individuals and institutions make a reasoned decision about fair use.³  On the surface, the checklist is a breakout of variables and facts relevant to the four factors.  It is an attempt to capture some of the circumstances and conditions that courts have identified as relevant or even important to the evaluation of each factor.  The checklist is not the only resource available for understanding and applying fair use, but a look at its origin and uses will tell much about when and how one should properly use the checklist.

The original checklist for fair use was developed in 1997 while I was director of the Copyright Management Center on the IUPUI campus of Indiana University.⁴  It was the first copyright office of its kind based at any university, and one of our principal objectives was to help the local and national academic community better understand the law and its importance to teaching, research, and other university pursuits.  Fair use is obviously a critical part of that mix.

We built a website that offered a range of materials explaining fair use and the factors, summarizing cases, and offering scenarios for how one might apply the law.  We also had a vision of developing a checklist related to fair use.  I directed the office and worked closely with my colleague Dwayne K. Buttler (now at the University of Louisville) to craft this checklist.  Fair use is based on the four factors, and an increasing number of court rulings were articulating on the meaning of those factors and singling out relevant facts and circumstances.

Our first goal in giving the checklist shape was to review the court decisions and other relevant and influential materials to isolate the facts that are appropriate for consideration with reference to each of the four factors.  An obvious example is that the statute itself says that the first factor is the purpose of the use, and the statute further specifies that the nonprofit educational purpose is part of the consideration.  That was a clear and simple fact that would arise in a given context and be relevant for consideration and weighing in the balance of the first factor.  Also straight from the statute are the references to research, scholarship, criticism, comment, and news reporting. 

Some variables have been developed by courts.  For many decisions, a transformative use is pivotal in the evaluation of the purpose factor.  Similarly, copyright law has little to do with giving credit to the author, yet courts have recognized that when a user does credit the author, it indicates the good faith of the user’s intent, and good faith tends to weigh in favor of fair use.  Regarding the second factor, or the nature of the work, a series of cases have allowed less fair use if the work is unpublished.  Some courts have allowed less fair use for highly creative works such as art or music.  Conversely, if the work is published or nonfiction, then courts tend to be more generous with fair use.  The list of variables identified in the court cases can be lengthy.  Yet, certain variables arise frequently; certain variables are particularly influential; and certain variables are especially germane to uses in the higher education context we were seeking to serve.

The result of a review of the law and compilation of variables is simply what the document says—a checklist.  It is an organized list of elements to consider and that reflects how those variables have in fact appeared in court rulings, in the statute itself, and in other influential works (such as congressional reports).  The checklist tool is not mechanical and it is not a mysterious decision-making device.  It is first and foremost a tool intended to guide users through relevant variables and remind users that in a full and robust evaluation of fair use there might be additional points to consider before making a decision.

The Efficacy of Checklists

Checklists in general have gained significant attention recently.  A new study advocates the important role of checklists for use by physicians.  In the extreme, a tool that reminds a doctor to evaluate certain variables might be a lifesaving step.  Checklists have been a mainstay for airline pilots as they assess each step before locking up the passenger jet and rolling down the runway.⁵

Checklists have found their way into other legal realms beyond copyright.  Jennifer Murphy Romig of Emory University School of Law has written a review of The Checklist Manifesto, evaluating the book’s lessons for the law.  She concludes, “Whether applied to individuals or teams, and whether applied for a competitive advantage within one organization or at the level of policy across an entire profession, checklists appear to be enormously promising.  The Checklist Manifesto is a call for all professionals to take a closer look at their processes and outcomes and their strengths and weaknesses, and to open themselves up to the possibility that rigorously applying checklists could make a real difference in improving outcomes.”  She further adds that in the legal context, “the consistent use of well-constructed checklists can help lawyers improve outcomes on behalf of clients. . . .”⁶

Checklists have become a recommended tool in the publishing world.  At the 2012 Digital Book World Conference and Expo, two executives in the world of book publishing led a program titled, “The Checklist: How a Simple System Can Radically Improve Your Process and Your Products.”  According to the program description: “A well-made checklist is neither a to-do list nor a process description: It’s a tool for preventing critical errors at critical steps in the workflow; an aid to cooperative work among partners and colleagues; and a way of highlighting mission-critical items within the mass of details.”⁷

The Checklist Function: Neither Formula nor Calculator

A checklist may have different functions in different settings, but a checklist is clearly not a formula or a calculator.  It is instead a tool for helping decision makers consider and evaluate relevant steps and variables.  In that regard, a checklist is especially compatible with fair use.  Fair use is not mechanical.  Fair use has no equations or defined answers.  Fair use is about an evaluation of the variables as applied to the factors and a weighing of the persuasive strength of those factors to reach a conclusion about the appropriate scope of fair use.

In order to arrive at conclusions that are well informed and well reasoned, the checklist helps ensure the user will in fact consider relevant elements of the fair use determination.  In the years since developing the checklist for fair use, it has been widely adopted at colleges, universities, schools, companies, and other organizations throughout the country.  Some users have employed the version exactly as originally produced in 1997.  Others have modified it to meet local needs.  In the end the checklist should assist users making a thoughtful evaluation of the four factors. 

The checklist alone of course does not tell the whole story.  Not all of the variables will be relevant in any given case.  Moreover, some variables will be more persuasive or carry more convincing heft in some situations and as a result one factor might be more influential than another.  Courts do exactly the same thing.  One should therefore use the checklist in conjunction with other general reading about the meaning of the factors and how courts evaluate and apply them.

Although I have been immersed in evaluating fair use for many years, I find myself occasionally reaching for the checklist for my own needs.  In one recent project, I was using a reproduction of an artistic image.  I was working with a student on a project and saw the checklist as an effective way for me to document my own exercise of fair use, and a meaningful way to help the student to learn about and apply about fair use.  We reviewed our circumstances and marked the relevant boxes of the checklist.  We evaluated overall the persuasive strength of the different facts and factors.  We felt sufficiently confident that the use of the image was within fair use.

We then pondered one more question: What else could we reasonably do to be even more confident that our use was indeed fair?  The checklist helped us answer that question.  By looking at the boxes that were not checked, an unmarked box about credit to the source of the image stood out.  We had shortcut the credit and could do better.  Used in this manner, the checklist helped us reach a reasoned conclusion about fair use, and it helped us review and strengthen our case for fair use—an ideal deployment of the fair use checklist.

Kenneth D. Crews directs the Copyright Advisory Office of Columbia University Libraries and he teaches in the Columbia Law School, New York City.

Endnotes:

1. Folsom v Marsh, 9 F.Cas. 342 (1841). 2. U.S. Copyright Act, 17 U.S.C. § 107 (2012). 3. The checklist and related materials are available from the website of the Copyright Advisory Office of Columbia University: http://copyright.columbia.edu. 4. Kenneth D. Crews, “The Copyright Management Center at IUPUI: Brief History, Dynamic Changes, and Future Demands,” Indiana Libraries: Journal of the Indiana Library Federation & the Indiana State Library 19 (1 November 2000): 13-15. 5. Atul Gawande, The Checklist Manifesto: How to Get Things Right (New York: Metropolitan Books, 2009). 6. Jennifer Murphy Romig, “The Legal Writer’s Checklist Manifesto,” Legal Communication & Rhetoric: JALWD, 8 (Fall 2011): 93-107.  Available at: www.alwd.org/LC&R/CurrentIssues/2011/pdfs/romig.pdf. 7. The conference program and description are available at: www.eiseverywhere.com/ehome/24240/36095/?&.

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