The Effect of the Use on the Market or Value of the Copyrighted Work

This factor examines the anticipated effect of the use on the market for the copyrighted work. If the proposed use is likely to become widespread and would negatively affect the market for or value of the copyrighted work, this factor would weigh against fair use. This factor is often cited as the most important of the four, although the factors all interrelate and must be evaluated in conjunction with each other.

Weighing and Balancing the Factors
A central tenet of the fair use analysis is a flexible doctrine that Congress wanted us to test and adapt for changing needs and circumstances. The law provides no clear and direct answers about the scope of fair use or its meaning in specific situations. Instead, we are compelled to return to the four factors and to reach reasoned and responsible conclusions about the lawfulness of our activities. Reasonable people may differ widely on the applicability of fair use, but any reliable evaluation of fair use must depend upon a reasoned analysis of the four factors of fair use. If most factors lean in favor of fair use, the proposed use is probably allowed; if most lean the opposite direction, the action will not fit the fair use exemption and may require permission from the copyright owner. Reliance on a “reasoned” analysis using the Checklist for Fair Use is essential to claiming a good-faith effort.

Procedure for “Fair Use” Analysis
The law permits some “fair” uses if a reasoned analysis is conducted and most of the factors weigh in favor of fair use. To do an analysis, use the Checklist for Fair Use to determine whether portions of copyrighted works may be used without permission. Do this analysis each time you want to determine whether your proposed use of a work is fair. Contact the Copyright Licensing Office if you have any questions regarding the overall analysis and use of the checklist. You should complete each request on a separate checklist, sign, and date the checklist, attach a copy of the material analyzed for fair use, and if needed, review your analysis with the BYU Copyright Licensing Office.

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