Summary. The fair use analysis, in the order that works.

Phase 1 — Intake: convert the question into a specification

Do not analyze until all six are answered.

  • What exactly is being used? Specific material, specific portion, specific resolution or duration.
  • What is the source work? Title, author, date, subject matter.
  • How much, relative to the whole? Quantitatively and qualitatively.
  • In what medium and context will it appear?
  • What is the communicative purpose — what work does the material do in your work?
  • Who is the audience, and is the use commercial?

Failure mode: answering "can we use this photo?" — a question with no answer.

Phase 2 — Screening

  • Is the material protectable at all? Facts, ideas, and short phrases are not.
  • Is it a United States government work or the text of law (government edicts doctrine)?
  • Is it in the public domain?
  • Who owns it? Check publication credits and Copyright Office records; note that ownership may be split by medium or territory.
  • Is the work published or unpublished?
  • Is it registered, and when? This does not affect the fair use analysis but determines whether exposure is a license fee or statutory damages under 17 U.S.C. § 504 and fees under 17 U.S.C. § 505.
  • Does any contract — terms of service, dataset license, subscription agreement — restrict the use independently of copyright? Fair use is not a defense to breach.

Failure mode: running a full analysis on material that was never protected, or missing that exposure is capped because the work is unregistered.

Phase 3 — Characterize the purpose

  • Write one sentence describing what the material does in your work.
  • Categorize: commentary on the source work / commentary on something else / documentation or evidence / illustration / technical necessity / substitution.
  • State the original's purpose.
  • The Warhol question: are the two purposes the same or highly similar? If yes and the use is commercial, factor one weighs against you absent a specific justification.
  • The justification question: do you need this work, or would another have served? Record the answer.

Phase 4 — Map the owner's markets

  • How does the owner ordinarily exploit this work?
  • Does a licensing market exist for uses like yours? Stock agencies, collective licensing, permissions departments, sync licensing.
  • What would a license cost, and how long would it take?
  • Has the owner licensed for this use type before? Refused to?
  • Does the asserted market exist independently of uses like yours, or only because of them?

Phase 5 — Factor one: purpose and character

  • State the original's purpose and your purpose side by side.
  • Assess the degree of difference; transformation is a matter of degree, not a binary.
  • Assess the justification for using this specific work.
  • Note commerciality — an element, not a trump.
  • If parody: does the use target the original work? If satire: acknowledge the weaker position.
  • Note any bad-faith facts and address them.
  • Conclusion: favors / neutral / disfavors, with a reason.

Phase 6 — Factor two: nature of the work

  • Creative or factual/functional?
  • Published or unpublished?
  • If the work is genuinely functional (software interfaces, compilations, technical documentation), develop this factor at length.
  • Conclusion: favors / neutral / disfavors.

Phase 7 — Factor three: amount and substantiality

  • What fraction of the source work was taken?
  • Was the heart of the work taken?
  • Is the amount reasonable in relation to the purpose established under factor one?
  • Could the purpose be accomplished with less? If yes, take less.
  • If taking the whole work, state why complete copying is necessary.
  • Conclusion: favors / neutral / disfavors.

Phase 8 — Factor four: market effect

  • Would a consumer of your work forgo the original? (Direct substitution)
  • Does your use occupy a derivative licensing market the owner exploits or reasonably would?
  • Is that market one owners "traditionally, reasonably, or likely would develop"?
  • Aggregation: what if uses like yours became widespread?
  • What evidence supports the no-harm conclusion? Assertions lose.
  • Conclusion: favors / neutral / disfavors.

Phase 9 — Weigh and tier

  • Write a weighing paragraph. Do not count factors.
  • Note that factors one and four are linked through substitution.
  • Assign a tier:
Tier Meaning
Strong Different purpose, no substitution, proportionate taking
Defensible Genuine argument on each factor; reasonable minds could differ
Weak Shared purpose or real market substitution; thin justification
Untenable Decorative or substitutional use of a registered creative work
  • Route to the appropriate decision maker for that tier.

Phase 10 — Mitigations

  • Reduce the amount to the minimum that accomplishes the purpose.
  • Add commentary that engages the source material directly.
  • Change the presentation — lower resolution, thumbnail, non-substitutional display.
  • Separate the uses and drop the weak ones.
  • Substitute your own or licensed material where the use is illustrative.
  • License the contested pieces even if the rest proceeds on fair use.
  • Document any refusal or inability to locate the owner, with dates.
  • Check the platform policy separately from the legal analysis.

Phase 11 — Document

  • Memorandum contains: the specified use, the source work, factor-by-factor reasoning, the weighing paragraph, the tier, mitigations, and alternatives considered.
  • Memorandum is dated and includes a revisit recommendation.
  • Licensing alternatives were priced and recorded.
  • Decision maker and date recorded.
  • For multi-use projects, a clearance log is maintained with one row per use.
  • Privilege status of the memorandum is understood, and the consequences of relying on it later are noted.

Context-specific checkpoints

Documentary and journalism

  • Is the material discussed or does it serve an evident evidentiary purpose?
  • Is the amount no more than needed?
  • Does the errors-and-omissions insurer's opinion format have specific requirements?
  • Is the clearance log being built during production, not after?

Publishing

  • Epigraphs, song lyrics, and poetry: assume a permissions market and license.
  • Is the house permissions standard stricter than the law? Know which you are applying.

Education

  • Tied to a specific class session, or systematic?
  • Does a permissions market exist for this material?
  • Does the institution's policy apply the statutory factors rather than a numeric rule?

Software

  • Interoperability purpose documented?
  • Implementing code copied, or only interfaces?
  • Any 17 U.S.C. § 1201 circumvention issue?
  • Any contractual restriction in the license or terms of service?

Marketing and social

  • Is this decorative? If so, license or substitute — do not analyze.
  • Is licensed stock material available under an existing subscription?

Machine learning

  • Training, weights, and outputs analyzed separately.
  • Data provenance recorded: what, from where, under what terms, when.
  • Any site terms or dataset license restricting the collection?
  • Any 17 U.S.C. § 1202 copyright management information stripped?
  • Do outputs compete in the same market as the training works?

Reference: what each step prevents

Step Failure prevented
Intake specification Analyzing a work instead of a use
Registration check Misjudging exposure by two orders of magnitude
Purpose characterization Missing the Warhol shared-purpose problem
Market mapping An unsupported factor four conclusion
Justification question Satire treated as parody
Proportionality Taking more than the purpose requires
Evidence for factor four Losing on the factor that matters most
Tier and escalation The wrong person making a company-level risk decision
Dated memorandum No good-faith record when willfulness is litigated
Provenance records An unreconstructable dataset history

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