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FAIR USE TEST

Q1

Transformation

By incorporating the copyrighted material into your new work, has the material been given new expression, or altered in terms of meaning? (yes=green)

-YES EXAMPLE- The original picture of Madonna with her son has been 'transformed' into a multi-media collage with layers, color, iconography and American imagery. The original picture serves as a foundation for the new work, but the two images are very different from each other. (GREEN)

-MAYBE EXAMPLE-girl talk video This song by GirlTalk is probably "transformative" because it successfully changes the sound bites it uses into a new song with complicated rhythms, vocals and melodies and because it alters, manipulates, and draws over copyrighted images, thereby changing their look, feel and purpose. But content owners maintain that sampling of commercially produced sound recordings like this is not fair use, in part because of the established market for samples. When you hear an ordinary 3-5 second sample in a hip-hop song, it is ordinarily licensed. Girl Talk takes more of the original copyrighted work than an ordinary hip-hop sample, suggesting that he would have an even more difficult time establishing fair use. (YELLOW)

-NO EXAMPLE- Posting a famous movie on bittorrent. There is no transformation here.. If you showed someone the original clip and the secondary reposting and asked, "Tell me which ones which, the original or the reposting? It would be impossible to answer. Each clip is identical and a full copy of the movie. Nothing has been added, nothing has been taken away and nothing has been changed. If you can't tell the difference between the original and the 'second' version, it's not fair use. (RED)

Commercial

Will your work be used for commercial gain or only in a noncommercial context? (commercial=red; non-commercial=green)

Parody

Is the copyrighted work being parodied?

Critique

Are you commenting or critiquing the copyrighted material? Are you using the copyrighted work as an illustration or example?

Q2

Published

Has the copyrighted material been published already?

Factual

Are you using copyrighted material that concerns facts or data, and/or is scholarly in nature?

Q3

Amount

Is the amount of the original copyrighted material you are using reasonable? 
Could you use less and still make the same statement? 

Q4

Substitute

Would (potential) buyers/users of the original work consider your work an adequate substitute for the original? 

(dancing baby/Prince GREEN; line dance at the office or GirlTalk YELLOW; Making entire song available on BitTorrent)

Market Injury

Is there an existing or potential market for the original work that could be impacted? 

(Swarthmore Diebold publishing voting.. (no market for emails therefore GREEN; Music—sampling. Established market for licensing short portions of music. RED. Using a profile page/social network collage myspace.. no once has a licensed market profile pages. There’s not necessarily a market.

EXTRA CREDIT

Have you researched and are you familiar with the fair use best practices your media-making community uses?

If Red answers outnumber all others (4 or more)

If you have more red answers than any other type, you may want to reconsider whether your use is really a fair one. Remember, fair use involves the interaction of multiple variables. Consider what you’ve learned: could you modify the work to make it fall more squarely within the fair use factors? Discuss the choices and challenges you face with others and see if they come up with the same results.

If Green and Red are equal in # (3-4 apiece)

If you have as many green answers as red answers, it is difficult to predict whether this use would be considered fair or not. Remember, fair use involves the interaction of multiple variables. Some factors may be more important to a judge than others. To be safe, you may want to go back and modify this work in light of what you’ve learned. Discuss the choices and challenges you face with others and see if they come up with the same results as you.

If Green answers outnumber all others (4 or more)

If you have more green answers than any other type, it’s likely that your use is a fair one. Remember, fair use involves the interaction of multiple variables. A judge will look at a number of factors to make a fair use decision. It looks like your work would likely pass muster. Congratulations! It’s not easy to find a fair use!