Fair Use Toolkit: Analysis Memoranda, Clearance Decisions, and Litigation Positions

Summary. The working documents of a fair use practice, annotated.

Template 1 — Clearance intake form

Owner: the requester completes it; the lawyer does not begin without it.

REQUESTER ______________  DATE ______  PROJECT ______________

1. MATERIAL TO BE USED
   Describe precisely (not "a photo"):
   Portion / duration / resolution:
   Attach or link the material:

2. SOURCE WORK
   Title:                    Author:
   Publication date:         Publisher:
   Published or unpublished:
   Where you found it:
   URL or citation:

3. AMOUNT
   Of the whole source work, this is approximately ____%
   Is this portion central to the source work?  Y / N / Unsure

4. YOUR USE
   Medium (film / book / website / slide deck / dataset / other):
   Where in the work it appears:
   Duration or size as it will appear:

5. PURPOSE — what is this material DOING in our work?
   (One or two sentences. "It looks good" is an answer; write it.)

6. AUDIENCE AND COMMERCIALITY
   Who sees it:              Is the work sold or monetized:  Y / N

7. ALTERNATIVES
   Could our own material serve the purpose?      Y / N
   Have you looked for a licensable substitute?   Y / N
   Have you contacted the owner?                  Y / N — result:

8. DEADLINE AND CONSEQUENCE OF DELAY

What it prevents: three rounds of email before analysis can begin.

Template 2 — Fair use memorandum

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

TO:       [decision maker]
FROM:     [counsel]
DATE:     [date]
RE:       Fair use analysis — [project], [material]

I.   THE PROPOSED USE
     [The specification: exactly what, how much, where, for what purpose.]

II.  THE SOURCE WORK
     Owner:                    Published:
     Registered:  Y / N — date and number, or basis for conclusion
     How the owner exploits the work:
     Licensing market:  exists / does not exist / uncertain
     Estimated license cost and turnaround:

III. FACTOR ONE — PURPOSE AND CHARACTER
     A. The original's purpose
     B. Our purpose
     C. Degree of difference; the Warhol shared-purpose question
     D. Justification for using this specific work
     E. Commerciality
     F. Conclusion: favors / neutral / disfavors

IV.  FACTOR TWO — NATURE OF THE WORK
V.   FACTOR THREE — AMOUNT AND SUBSTANTIALITY
     A. Quantitative
     B. Qualitative — is this the heart?
     C. Proportionality to purpose
VI.  FACTOR FOUR — MARKET EFFECT
     A. Direct substitution
     B. Derivative licensing market
     C. Aggregate effect
     D. Evidence

VII. WEIGHING
     [One paragraph. Not a tally.]

VIII. RISK TIER:  Strong / Defensible / Weak / Untenable

IX.  MITIGATIONS THAT WOULD IMPROVE THE POSITION
X.   ALTERNATIVES CONSIDERED
     Licensing:              Substitution:          Original creation:
XI.  RECOMMENDATION
XII. REVISIT IF: [the use changes / a licensing market develops / by DATE]

Two notes. The alternatives section is evidence of good faith and matters under 17 U.S.C. § 504(c)(2). The privilege header matters because a memorandum relied on to negate willfulness will generally require a waiver — decide that later, but label it correctly now.

Template 3 — Clearance log

For projects with many uses. One row per use; the memorandum is reserved for contested ones.

Rules. Every row gets a tier, even the obvious ones. Every "Weak" or "Untenable" row gets either a license reference or a removal note. The log is the deliverable an insurer or distributor will ask for.

Template 4 — Risk tier and escalation matrix

Adopt this as policy, not as guidance. The purpose is to ensure the person who bears the organizational risk makes the call.

Template 5 — Permission request letter

Send it before concluding no license is available. A granted license is usually cheaper than the analysis.

Dear [name],

I am writing on behalf of [organization] to request permission to reproduce the following material:

Work: [title, author, publication details] Material: [precise description of the portion]

Intended use: [medium, context, print run or distribution, territory, term, format]

We would be glad to include any credit line you specify. If a fee applies, please advise the amount and the terms.

If your organization does not control these rights, we would be grateful for any information about who does.

We would appreciate a response by [date] as our production schedule requires a decision at that point.

Record the response, the non-response, or the refusal, with dates. Each supports the justification analysis differently, and a documented non-response after diligent effort is a materially better position than silence in the file.

Template 6 — Diligent search record (orphan works)

United States law has no orphan works safe harbor. Documentation is the only mitigation.

Conclusion to record: the owner could not be identified or located after diligent search, described above, conducted on [dates].

Template 7 — Data provenance record

For datasets, archives, and training corpora. Retrofitting this is close to impossible.

Archive the terms of service as they existed on the collection date. Site terms change, and reconstructing what they said two years ago is a real evidentiary problem.

Template 8 — Fair use affirmative defense (pleading)

[Nth] AFFIRMATIVE DEFENSE — FAIR USE

Defendant's use of the work[s] identified in the Complaint constitutes fair use under 17 U.S.C. § 107. The purpose and character of Defendant's use is [criticism / comment / news reporting / teaching / scholarship / research / other], and differs materially from the purpose for which the work[s] [are] ordinarily exploited. The nature of the work[s] is [factual / functional / published]. Defendant used no more of the work[s] than was reasonably necessary to accomplish that purpose. Defendant's use does not substitute for the work[s] in any market that Plaintiff exploits or would reasonably develop, and does not diminish the value of the work[s].

Plead the facts, not the elements. A defense pleaded in statutory language invites a motion to strike in jurisdictions applying heightened pleading to affirmative defenses.

Template 9 — Defendant's fair use discovery requests

Document requests to the plaintiff:

1. All licenses granted for the work[s] at issue.
2. All licenses granted for works of the same type for uses comparable to the accused use.
3. Rate cards, fee schedules, and published permission terms.
4. All permission requests received for the work[s], and responses.
5. All refusals of permission and the reasons.
6. Documents sufficient to show revenue from the work[s] by year and by channel.
7. All internal documents discussing the accused use.
8. The registration file, including the deposit copy and all correspondence with the Copyright Office.
9. Documents concerning any market Plaintiff contends was harmed.
10. Documents concerning Plaintiff's plans to enter any such market.

Deposition topics:

• Licensing practices and decision criteria
• Whether the plaintiff has ever licensed for the accused use type
• The basis for any contention of market harm
• Revenue trends and their causes
• The registration process and any inaccuracies

Template 10 — Plaintiff's fair use discovery requests

Document requests to the defendant:

1. All analyses of the accused use, legal or business.
2. All documents concerning alternatives considered, including licensing inquiries.
3. Documents sufficient to show revenue attributable to the accused work.
4. Documents sufficient to show the volume and duration of the accused use.
5. Communications concerning the plaintiff or the work[s].
6. Any clearance log or permissions record for the project.
7. Documents concerning the defendant's clearance policies and their application.
8. For datasets: provenance records, collection terms, and filtering documentation.

Note the privilege interaction. A defendant relying on counsel's opinion to negate willfulness will generally waive privilege over the subject matter. A plaintiff should probe early whether reliance will be asserted so the scope of any waiver is litigated on a schedule.

Template 11 — Factor four expert declaration outline

I.    QUALIFICATIONS (licensing markets, industry practice, economics)
II.   MATERIALS CONSIDERED
III.  THE MARKETS IN WHICH THE WORK IS EXPLOITED
      A. Primary market
      B. Derivative and licensing markets
      C. How comparable works are licensed in this industry
IV.   WHETHER A LICENSING MARKET EXISTS FOR USES OF THE ACCUSED TYPE
      A. Evidence of existing transactions
      B. Whether the market is traditional, reasonable, or likely to develop
      C. Whether it exists independently of uses like the accused use
V.    SUBSTITUTION ANALYSIS
      A. Whether consumers of the accused work would forgo the original
      B. Empirical evidence, if any
VI.   AGGREGATE EFFECTS
VII.  OPINIONS AND BASES
VIII. DECLARATION UNDER 28 U.S.C. § 1746

Template 12 — DMCA counter-notification

Under 17 U.S.C. § 512(g). Filing converts a takedown into a litigation decision for the owner.

1. My name, address, telephone number, and email address are: [ ].
2. I identify the material that was removed or to which access was disabled, and the location at which it appeared before removal: [ ].
3. I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material.
4. I consent to the jurisdiction of the Federal District Court for the judicial district in which my address is located, or if my address is outside the United States, for any judicial district in which the service provider may be found, and I will accept service of process from the person who provided the notification or an agent of such person.
5. I declare under penalty of perjury that the foregoing is true and correct.

[Signature] [Date]

Advise the client first. A counter-notice invites suit, and the consent-to-jurisdiction provision means the client has chosen a forum. Where the relationship or the exposure matters, negotiation may be better.

Template 13 — Clearance policy (organizational)

1. SCOPE
   Applies to all use of third-party copyrighted material in [products].

2. DEFAULT RULES
   a. Decorative use of third-party creative material is NOT PERMITTED.
      Use licensed stock or original material.
   b. Material licensed under the organization's stock subscription may
      be used per that license without further review.
   c. Public domain and government works may be used; verify status.

3. WHEN TO SUBMIT FOR REVIEW
   Any use of third-party material that is not covered by rule 2.

4. INTAKE
   Complete the clearance intake form. Requests without it are returned.

5. TIERS AND DECISION AUTHORITY
   [Insert Template 4 matrix.]

6. DOCUMENTATION
   Every reviewed use is recorded in the project clearance log.
   Contested uses receive a memorandum.

7. DATASETS AND TRAINING DATA
   Provenance records (Template 7) are mandatory at collection time.

8. TAKEDOWNS
   Route all DMCA notices to [role] within one business day.
   Counter-notices require [role] approval.

9. TRAINING
   Annual fifteen-minute briefing for content and marketing teams.

10. REVIEW
    This policy is reviewed annually and after any material change in law.

Template 14 — Fair use position summary for a business audience

One page. Written for someone who will not read the memorandum.

What we want to do: [one sentence] What the law asks: whether our use serves a different purpose than the original and whether it takes business from the owner. Where we stand: [Strong / Defensible / Weak / Untenable] The strongest point in our favor: [one sentence] The strongest point against us: [one sentence] What a license would cost: [amount and turnaround] What could happen if we are wrong: [realistic exposure, including whether statutory damages are available] Recommendation: [proceed / proceed with changes / license / do not proceed] If you want to proceed anyway, here is what we would change: [mitigations]

Related documents

• Copyright Fair Use: The Four Factors, Transformative Use, and What Warhol Changed
• Conducting a Fair Use Analysis: A Practical Guide
• Copyright Fair Use Checklist: A Practical Checklist
• Copyright Licensing and Clearance Toolkit: Permissions, Rights, and Chain of Title
• AI Licensing Toolkit: Data Provenance Records, License Terms, and Indemnity Clauses
• Copyright Enforcement and DMCA Toolkit: A Roadmap and Research Guide
• Copyright Registration Toolkit: A Roadmap and Research Guide