The nature of the work refers to whether the work was published (more likely to be considered a fair use) or unpublished (less likely to be considered a fair use) as well as whether the work is factual/historical in nature (more likely to be a fair use) or highly creative (less likely to be a fair use).
This factor considers how much of the protected work was taken. Did you make a copy of just a paragraph? Or did you copy an entire book? It is also important to consider the quality of the work taken, not just the quantity. For instance, courts take into account whether the "heart" of the work was taken, not just whether a substantial portion was reproduced.
In this factor courts generally consider whether the use of the copyright protected work would replace the market for the original work. For instance, if I copied and pasted an entire book of the Harry Potter series online then individuals wishing to read the book would no longer have to purchase the book and the author of the book would be harmed. Thus, that would not be considered a fair use. However, if I wrote an essay, a piece of fan fiction using the names and likeness of the characters from Harry Potter but with a new plot, perhaps it would not easily replace the original and would not supplant the marketplace of the Harry Potter book sales (however, remember that derivative works are also under the control of the author, so if the new piece of fan fiction were not transformative enough, it likely would not be considered a fair use overall--remember that all factors, not just one, need to be weighed when considering fair use).
There are many useful online tools to utilize in order to determine whether a particular use is a fair use. It is a good idea to document your fair use determination and keep it on file. Remember to make case-specific determinations, not global ones. For instance, instead of completing one fair use checklist for the use of 13 images in an article, complete 13 separate checklists and keep them on file. If you determine that the use is not a fair use, seek permission.
The following charts are a visual representation of the balancing act that fair use entails.
|1. What is the character of the purpose of the use?|
|Educational use is much more likely to fall within the range of fair use. In general, courts are less likely to consider use fair if the use is for profit.|
|2. What is the nature of the material being used?|
|This is a difficult one to grasp, but in general, published and factual works are more likely to be considered fair use cases than unpublished and fictional works.|
|3. How much of the work will be used?|
|Reproduction of the entire work is rarely considered fair use. The use of a small, relevant portion is much safer, so long as that portion is not the heart of the work.|
|4. What effect will this have on the market for the original material?|
|If your use stands in the way of potential sales for the creator or is easily available for a reasonable price, you should consider licensing rather than copying.|
If more of your answers fall towards the green end of the spectrum, your use has a better chance to be considered fair. Too many red answers signify a time when it is best to get permission.
This Fair Use Checklist can be printed and used to help you make a decision about your use of a work. It’s a good idea to use the checklist and save a copy for your records any time you have to make a decision about fair use.
The Association of Research Libraries has published a Code of Best Practices in Fair Use for Academic and Research Libraries that is also worth consulting.