Conducting a Fair Use Analysis: A Practical Checklist

Intellectual Property > Copyright | Published 6 February 2024 - Updated 28 April 2025 | UpLaw - uplaw.us

Fair use is not a right you assert; it is a defense you build. It rewards people who reason like a judge before they copy — and punishes those who reason like a defendant only after they are sued.

Keywords: fair use, 17 U.S.C. 107, four factors, transformative use, Warhol v. Goldsmith, Campbell, Google v. Oracle, Harper & Row, Sony, parody, criticism, market harm, licensing market, AI training

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Fair use is a defense, not a right: the framework and the burden

Fair use lives in a single, deceptively short statute — 17 U.S.C. § 107. It tells courts to weigh four non-exclusive factors: (1) the purpose and character of the use, including whether it is commercial or nonprofit educational; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the potential market for or value of the work. No factor is dispositive; the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), instructed courts to weigh them together "in light of the purposes of copyright."

Two things trip people up before they even start. First, fair use is an affirmative defense. That means it presumes infringement — you have copied protected expression — and asks whether the law will excuse it. You carry the burden of proving it. Second, fair use is a mixed question decided case by case; there is no safe percentage, no "30-second rule," no magic word count. Anyone who tells you "you can use up to 10% for free" is selling a myth.

This checklist gives you a repeatable method. Work the factors in order, document as you go, and be honest about the answers. For the doctrinal foundation, keep Copyright Law: A Complete Overview and Copyright FAQs: Plain-Language Answers to the Questions People Ask Most open beside you.

Meet our running example. Marsh & Copper Media publishes The Undercurrent, a subscription newsletter, and is producing a documentary, Riverbound, about a disgraced river-town developer. The team wants to (a) quote three paragraphs from the developer's out-of-print memoir, (b) show ten seconds of a copyrighted local news broadcast, and (c) recreate a famous protest photograph as cover art. Each use gets its own fair-use analysis — fair use is decided use-by-use, not project-by-project.

Phase 0 — Frame the question before you touch the four factors

• [ ] Confirm the material you want is actually protected by copyright (facts, ideas, and public-domain works are free to use; see Copyright Renewal and the Public Domain: Untangling the Two-Term System).
• [ ] Confirm you are copying protectable expression, not just unprotected facts or ideas — quoting a statistic is not infringement at all, so no fair-use defense is needed.
• [ ] Identify each discrete use separately (each quotation, each clip, each image gets its own analysis).
• [ ] Ask whether a license is cheap and available; fair use is the fallback when licensing is impractical, refused, or would defeat the point (as in criticism).
• [ ] Note whether any contract, terms of service, or license already governs your access to the material — a private agreement can bind you even where fair use would otherwise apply (see Web Scraping and the Law After hiQ v. LinkedIn: Where the CFAA, Contract, and Copyright Collide).

Why it matters, and the traps. The single most common error is treating fair use as the first question when it is the last. If the material is public domain or you are only borrowing facts, you never reach § 107 and you should not muddy the record by claiming fair use — it implicitly concedes copying of protected expression. The second trap is the "project" fallacy: Riverbound is not "a fair-use documentary." The memoir quotation might be a clean fair use while the recreated photograph is flatly infringing. Analyze each use on its own facts.

Factor 1 — purpose and character: transformative use after Campbell and Warhol

The first factor is where most cases are won or lost, and it has two sub-inquiries after Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).

Sub-inquiry A: Is the use transformative? Since Campbell, courts ask whether the new work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Parody, criticism, commentary, news reporting, and scholarship are classic transformative purposes. Simply moving a work to a new medium, or using it because it is pleasing, is not transformation.

Sub-inquiry B (the Warhol recalibration): Is the transformation enough, given the specific use and its commercial character? Warhol is the most important fair-use decision in a generation, and it narrowed the transformative inquiry. Andy Warhol had silk-screened Lynn Goldsmith's photograph of Prince; the Foundation later licensed the "Orange Prince" image to a magazine to illustrate an article about Prince — exactly the use Goldsmith's original photograph would serve. The Court held the first factor favored Goldsmith because Warhol's use shared the same commercial purpose (illustrating a magazine story about Prince) as the original licensing market, and the added meaning did not justify appropriating that specific market.

Phase 1 — Work the purpose-and-character factor

• [ ] State, in one sentence, your purpose in copying (to criticize, to report, to parody, to teach, to illustrate, to decorate, to compete).
• [ ] Ask whether your use adds new expression, meaning, or message — and write down what it is.
• [ ] Compare your use's purpose to the original's purpose and its established licensing markets; the closer they overlap, the weaker the factor (this is the Warhol test).
• [ ] Note whether the use is commercial or nonprofit/educational — commerciality weighs against you but is not decisive (Campbell).
• [ ] Ask the Warhol justification question: does this use need to copy this work, or could it make its point without the original?
• [ ] Confirm you are not using the work merely as a substitute for licensing it in its own market.

Why it matters, and the traps. The biggest post-Warhol trap is assuming "I added new meaning" ends the inquiry. It does not. Warhol teaches that new meaning is necessary but not sufficient; the use must also not usurp the original's market at its own "level of generality." A commentary that targets the original work has a strong justification to copy it (you cannot critique a photograph without showing it). A use that merely borrows the work as raw material for an unrelated commercial purpose has a weak justification. Google's copying of Java API declaring code survived in Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021), precisely because it was transformative in a functional sense — reimplementing an interface to let programmers deploy their skills on a new platform — a different context from the original.

Worked example. For Riverbound's ten-second news clip, Marsh & Copper's purpose is to show viewers what the developer said on camera the day of the flood — a critical, documentary purpose that comments on the footage itself. That is a strong Factor 1 posture. But for the recreated protest photograph used as cover art, the purpose is decorative and promotional; it borrows the photograph's power without commenting on it and competes with the photographer's own licensing market. Factor 1 leans against the studio there.

Commerciality and the "justification" turn in Warhol v. Goldsmith

Warhol deserves its own stop because it reframed how commerciality and justification interact. Pre-Warhol, a highly transformative use could carry a commercial purpose along with it. Post-Warhol, when the transformation is modest and the use is commercial, the first factor tilts hard against the copier.

The Court's central move was to define the relevant "purpose" narrowly — not "Warhol made art," but "the Foundation licensed a Prince image to a magazine to illustrate an article about Prince." Framed that way, the use directly substituted for Goldsmith's own market. The lesson: describe your use at the level of the specific market you are entering, and ask whether the original serves that same market.

Phase 2 — Pressure-test commerciality and justification

• [ ] Describe your use at the specific market level (not "art," but "cover art licensed to promote a film").
• [ ] Ask whether the original creator licenses into that same market (stock photos, sync licenses, quotation permissions).
• [ ] If the purposes overlap, identify a concrete justification for copying this particular work (targeted criticism, historical necessity, interoperability).
• [ ] Downgrade your confidence if the answer is "it looked good" or "it was convenient."

Why it matters, and the traps. The trap is generalizing your purpose to sound transformative ("I'm making a documentary; documentaries are transformative"). Courts now resist that. A documentary is a collection of individual uses, each of which competes — or does not — with a specific market. When your use and the original both feed the same licensing pool, expect Factor 1 to favor the rightsholder unless you have a targeted reason to use that exact work.

Factor 2 — nature of the copyrighted work

The second factor asks about the work you copied, on two axes. First, creative versus factual: copying from a highly creative work (a novel, a song, a photograph composed for effect) weighs against fair use more than copying from a factual or informational work (a news account, a technical manual, a database). Second, published versus unpublished: copying from an unpublished work weighs against fair use, because the author holds the right of first publication. That principle drove Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), where The Nation scooped President Ford's unpublished memoirs — the unpublished status was decisive against fair use.

Phase 3 — Characterize the work you copied

• [ ] Classify the work as more factual/informational or more creative/expressive.
• [ ] Confirm whether the work is published or unpublished (unpublished weighs against you; § 107's final sentence says unpublished status alone is not dispositive, but it matters).
• [ ] Note that Factor 2 is usually the least weighty factor and rarely decides a case on its own.

Why it matters, and the traps. Factor 2 is real but modest — the Supreme Court in Google v. Oracle called the declaring code "further than most computer programs from the core of copyright," which helped Google. The trap is over-investing here. Winning Factor 2 will not save a use that flunks Factors 1 and 4. The sharper point is unpublished material: quoting a leaked manuscript, a private letter, or a not-yet-released film cuts hard against fair use. For Riverbound, the developer's memoir is out of print but was published, so the right of first publication is not in play; the factor is roughly neutral, leaning against because a memoir is expressive.

Factor 3 — amount and substantiality (and the "heart of the work")

Factor 3 asks how much you took, measured both quantitatively (how many words, seconds, pixels) and qualitatively (did you take the most important, recognizable part — the "heart of the work"?). Harper & Row is again the anchor: The Nation quoted only about 300 words from a long memoir, but those words were the emotional core — Ford's account of pardoning Nixon — so the small quantity took the qualitative heart and weighed against fair use.

There is a crucial coupling with Factor 1: the amount that is fair depends on the purpose. Campbell held that a parody may copy enough to "conjure up" the original, and Google v. Oracle held that copying 11,500 lines of declaring code was reasonable because that was the amount needed to let programmers reuse their skills. Take what your legitimate purpose requires — no more.

Phase 4 — Measure what you took

• [ ] Quantify the portion used relative to the whole original (not relative to your new work).
• [ ] Ask whether you took the qualitative heart — the most memorable, valuable, or recognizable part.
• [ ] Tie the amount to your purpose: took only what was necessary to make the point? (criticism/parody/interoperability can justify more).
• [ ] Confirm you did not copy more than needed out of convenience.

Why it matters, and the traps. Two traps recur. First, people measure the borrowed portion against their own work ("it's only 5% of my documentary") when the law measures it against the original. Ten seconds may be a trivial fraction of your film but the entire chorus — the heart — of a song. Second, people forget that taking the whole work can still be fair (as with the time-shifting in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), where consumers copied entire programs) when the purpose demands it. Amount is contextual, not arithmetic.

Worked example. Marsh & Copper's three memoir paragraphs are a small quantity, but the editor should ask whether those paragraphs are the book's most quoted, defining passage. If they are the author's notorious confession, that is the heart, and Factor 3 tightens. If they are ordinary narrative used to establish a factual timeline, the factor is comfortable.

Factor 4 — effect on the market, including derivative and licensing markets

Factor 4 — the effect on the potential market for or value of the work — is, per Harper & Row, "undoubtedly the single most important element of fair use," and Warhol reaffirmed its centrality. It asks two questions: (1) does your use substitute for the original, displacing sales? and (2) if uses like yours became widespread, would they harm the market? Crucially, the market includes not just the original but derivative and licensing markets the owner has traditionally or reasonably could exploit — including the very licensing market you are trying to avoid paying into.

There is a doctrinal caution: the licensing-market inquiry is circular if taken too far (every unlicensed use "harms" a hypothetical license). Courts therefore ask about traditional, reasonable, or likely-to-be-developed markets — not every conceivable license. But after Warhol, if the copyright owner actually licenses into the market you are entering, Factor 4 (and Factor 1) will likely favor them.

Phase 5 — Assess market harm

• [ ] Ask whether your use substitutes for a purchase or license of the original.
• [ ] Identify the owner's actual and traditional licensing markets (stock, sync, quotation permissions, translations, adaptations).
• [ ] Ask whether widespread uses like yours would meaningfully harm those markets.
• [ ] Distinguish market harm (substitution) from mere market disruption — a devastating parody or bad review harms sales but is not the kind of harm copyright protects against (Campbell).
• [ ] If you are entering a market the owner already licenses, treat Factor 4 as weighing against you unless a strong justification (criticism, parody, transformation) rebuts substitution.

Why it matters, and the traps. The defining trap is conflating criticism with market harm. If your scathing review tanks the book's sales, that is not cognizable harm — copyright does not protect against the loss of demand caused by unfavorable commentary. What it protects against is substitution: a use so close to the original that consumers buy yours instead of the owner's, or license yours instead of the owner's. For Riverbound's recreated protest photograph, the studio would enter the exact market the photographer licenses (cover and promotional imagery), producing textbook substitution — a losing Factor 4. For the ten-second critical news clip, few viewers would substitute the documentary for the original broadcast, and no established license covers "critical excerpting," so Factor 4 leans fair.

Special contexts: parody, criticism, news reporting, education, and AI/dataset training

Certain use-types have their own gravitational fields. Run them through the same four factors, but know the tendencies.

Parody. Campbell is the fountainhead: a parody that targets and comments on the original may be fair even when commercial, and may copy enough to "conjure up" the original. The line is parody (comments on the original) versus satire (uses the original to comment on something else) — satire needs a stronger justification because it does not need the specific work.

Criticism and commentary. These are § 107's paragon uses. The strongest posture is criticism that targets the copied work, because you cannot critique what you cannot show or quote. Keep the amount tethered to the critical point.

News reporting. Favored but not automatic — Harper & Row was a news case that lost because of unpublished status and the taking of the heart. Reporting the facts in a work is always free; copying its expression still needs the fair-use analysis.

Education and scholarship. Nonprofit educational use helps Factor 1, but it does not immunize wholesale copying of textbooks or coursepacks that displace sales. Classroom photocopying and e-reserves have generated their own case law; volume and market substitution still control.

AI and dataset training. The newest frontier. Whether copying works to train a machine-learning model is fair use is being litigated now, with defendants arguing the copying is transformative (learning statistical relationships, not reproducing expression) and plaintiffs arguing about market substitution, memorized outputs, and lost licensing revenue for training data. Warhol's market-substitution emphasis and Google's functional-transformation reasoning both feature heavily. This area is unsettled — do not assume either outcome. For the current landscape and pending suits, see Generative AI on Trial: Copyright Infringement Claims After the New York Times and Getty Suits and Key Legal Issues in Artificial Intelligence: An Overview.

Phase 6 — Match your use to its special context

• [ ] If claiming parody, confirm your work comments on the original itself, not merely on society at large.
• [ ] If claiming criticism/commentary, confirm the copying is necessary to make the critical point and tethered in amount.
• [ ] If news reporting, separate free-to-use facts from copyright-protected expression, and check publication status.
• [ ] If educational, confirm the use does not substitute for purchasing the work (coursepacks, textbooks, e-reserves).
• [ ] If AI/dataset training, treat the law as unsettled, document your data sources, and get counsel before relying on fair use at scale.

Why it matters, and the traps. The recurring trap is mislabeling satire as parody. A song that mocks a celebrity by borrowing a famous melody is satire — the melody is not its target — and satire has a weak justification for copying that specific work. Another trap is the "educational halo": nonprofit purpose helps, but copying an entire textbook for a class still fails Factor 4. Match the use honestly to its category. Note also that style, technique, and typefaces are largely unprotected by copyright, so "borrowing a look" may not be infringement at all — see The Fine Line: Copyright Protection for Style, Typefaces, and Fonts.

Documenting a fair-use position before you copy

Fair use is proven with facts, and facts are best captured contemporaneously. A well-kept file turns a coin-flip defense into a persuasive one — and often persuades a rightsholder's counsel not to sue at all.

Phase 7 — Build the record

• [ ] Write a short memo for each use: what you copied, why, how much, and your factor-by-factor reasoning.
• [ ] Record your transformative purpose in your own contemporaneous words (a later-invented rationale is far weaker).
• [ ] Document the amount taken and why that amount was necessary.
• [ ] Note whether you sought or considered a license, and the result (unavailable, refused, impractical, or unnecessary because the use is critical).
• [ ] Preserve evidence that your use comments on or transforms the original (the surrounding criticism, the parodic elements, the new context).
• [ ] Where derivative-work rights are in play, understand what you may and may not add — see Registering Derivative Works: Protecting What You Added Without Overclaiming.
• [ ] Keep the memo with the project file; if challenged, it becomes the backbone of your response and, if needed, of your answer to a complaint.

Why it matters, and the traps. Courts and opposing counsel can smell a post-hoc rationalization. If your only "transformative purpose" was drafted by a litigator after the cease-and-desist arrived, it carries little weight. The trap on the other side is over-documenting bad facts — a candid internal email ("nobody will notice if we just use the photo") is discoverable and devastating. Write your fair-use memo as a genuine, sober analysis, not as spin, and train your team not to create damaging side commentary. If a dispute does arise, this file feeds directly into your response — see Filing a Copyright Infringement Complaint: A Practical Checklist for the plaintiff's mirror-image analysis, and When a Trademark Cease-and-Desist Letter Arrives: A Strategic Response Playbook for the general response posture.

Common mistakes to avoid

• Treating fair use as a right. It is an affirmative defense you must prove; it presumes you copied protected expression.
• The "percentage" myth. There is no safe word count, clip length, or percentage. Amount is qualitative and purpose-dependent.
• Analyzing the project, not the use. Each quotation, clip, and image needs its own four-factor analysis.
• Stopping at "I added new meaning." After Warhol, new meaning is necessary but not sufficient; you must also avoid usurping the original's specific market.
• Confusing criticism with market harm. A brutal review that tanks sales is not the harm copyright protects; substitution is.
• Measuring the take against your own work. The law measures the portion against the original, where a ten-second clip can be the whole heart of a song.
• Mislabeling satire as parody. Parody targets the original and has a strong justification; satire borrows to mock something else and needs a better reason.
• The educational halo. Nonprofit purpose helps Factor 1 but does not license coursepacks that substitute for buying the book.
• Ignoring contracts and terms of service. A license or ToS can bind you even where fair use would otherwise apply.
• Inventing the rationale after the lawsuit. Post-hoc transformative purposes are weak; contemporaneous documentation is strong.

Consolidated checklist — fair use at a glance

Frame the question

• [ ] Is the material actually protected (not public domain, not mere facts/ideas)?
• [ ] Are you copying protectable expression (so that a defense is even needed)?
• [ ] Analyze each discrete use separately.
• [ ] Is a license cheap and available? Does a contract/ToS already govern?

Factor 1 — Purpose and character

• [ ] What is your one-sentence purpose?
• [ ] Does the use add new expression, meaning, or message?
• [ ] Does your purpose overlap the original's specific licensing market (Warhol)?
• [ ] Commercial or nonprofit/educational?
• [ ] Justification: does this use need this work?

Factor 2 — Nature of the work

• [ ] Factual/informational or creative/expressive?
• [ ] Published or unpublished (Harper & Row)?

Factor 3 — Amount and substantiality

• [ ] How much relative to the whole original?
• [ ] Did you take the qualitative heart?
• [ ] Is the amount tied to and limited by your purpose?

Factor 4 — Market effect (most important)

• [ ] Does the use substitute for the original or its license?
• [ ] What are the traditional/derivative/licensing markets?
• [ ] Would widespread use harm those markets?
• [ ] Substitution vs. mere critical disruption?

Special context and record

• [ ] Parody vs. satire; criticism tethered; facts vs. expression; educational substitution; AI unsettled.
• [ ] Contemporaneous fair-use memo per use, license inquiry noted, damaging side commentary avoided.

Primary authority

• 17 U.S.C. § 107 — the fair-use statute and its four factors.
• Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) — first factor turns on the specific use's purpose and its overlap with the original's licensing market; new meaning is necessary but not sufficient.
• Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) — transformative-use framework; parody; commerciality is not presumptively dispositive; amount tied to purpose.
• Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021) — functional transformation; reasonable amount measured by purpose; nature of software code.
• Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) — right of first publication; the "heart of the work"; market effect as the most important factor.
• Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) — private, noncommercial time-shifting; copying an entire work can still be fair.

Secondary sources

• Nimmer on Copyright (Matthew Bender) — the leading treatise on § 107 and the transformative-use line of cases.
• U.S. Copyright Office, Fair Use Index and Circular 21 — practical guidance and case digests.

Related UpLaw resources

Related Guides & Articles

• Copyright Law: A Complete Overview
• Copyright FAQs: Plain-Language Answers to the Questions People Ask Most
• Generative AI on Trial: Copyright Infringement Claims After the New York Times and Getty Suits
• The Fine Line: Copyright Protection for Style, Typefaces, and Fonts
• Web Scraping and the Law After hiQ v. LinkedIn: Where the CFAA, Contract, and Copyright Collide
• Copyright and Trademark: Where the Two Regimes Diverge and Overlap
• Registering Derivative Works: Protecting What You Added Without Overclaiming
• Copyright Renewal and the Public Domain: Untangling the Two-Term System

Related Checklists

• Filing a Copyright Infringement Complaint: A Practical Checklist

Related Toolkits

• The Copyright Law Toolkit: A Complete Resource Library
• The Music Law Toolkit: Rights, Royalties, and Registration

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This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Fair use is decided case by case, and statutes and case law change; verify current authority and consult qualified counsel before relying on fair use.