# Is Your Use Fair Use? How to Assess the Risk > How to assess your own fair use risk before you publish: the four factors as questions about your facts, what Warhol changed, and when to license instead. Guide | Author: Lidiia Levitska | Source: Intellectual Property Law (outsideipcounsel.com) Canonical: https://outsideipcounsel.com/guides/fair-use-explained/
Quick answer: You cannot look up whether your use is fair. You can only assess how strong your position would be if someone sued, and then decide whether to accept that risk, reduce it, or buy it out with a license. Work the four factors of 17 U.S.C. § 107 as questions about your facts, not as doctrine: does my use have a real justification for copying this source, did I take more than that justification needs, and does my version substitute for the original or for a license of it? Factor four, market harm, decides more cases than the other three combined. Write down your reasoning before you publish, not after the letter arrives. And internalize the one thing most creators get backwards: fair use is a defense you raise after being sued, not permission you hold in advance. This is general education, not legal advice. For your own project, consult an attorney licensed in your jurisdiction.
Most fair-use advice tells you what the doctrine is. That is the wrong tool when you are standing in front of a publish button with a clip, a photo, or a dataset you did not create. What you need is a process: a way to interrogate your own facts, land on an honest risk grade, and decide what to do about it. For the underlying doctrine, the statutory text, and how courts actually apply the factors, see **[fair use](/topics/copyright/fair-use/)**. This guide assumes you have that and starts where it stops. It is part of the [creator copyright pillar](/guides/creators-guide-to-copyright/). ## Before anything else: what are you actually deciding? Here is the misunderstanding that causes more damage than every other fair-use myth combined. **Fair use is an affirmative defense**, not a category of exempt content, and the burden is yours. The [fair use concept page](/topics/copyright/fair-use/) covers why that is and where it comes from. What matters here is what it does to your decision, which is three things: 1. **"It's fair use" is a prediction, not a status.** When you say it, you are forecasting how a judge would weigh four flexible factors against facts they have not seen yet. Reasonable lawyers disagree. Reasonable *courts* disagree. 2. **Being right does not prevent the fight.** A defense you would win is still a defense you have to raise, which means you have already been claimed, taken down, demonetized, or sued. Winning is expensive. See [what to do if you are sued for copyright infringement](/guides/sued-for-copyright-infringement/). 3. **The question is never "is this fair use?" It is "how much risk am I taking, and is that risk worth what I get?"** That reframing is the whole point of this guide. So you are not looking for a yes. You are looking for a **grade** and a **decision**. ## How do I actually work factor one on my own facts? Factor one asks about the purpose and character of your use. Stop asking yourself "did I add something." That was the old question, and *Warhol* retired it. **[Andy Warhol Foundation v. Goldsmith](/blog/warhol-v-goldsmith-visual-art-fair-use/), 598 U.S. 508 (2023)**, held that adding your own expression does not carry factor one when your use serves substantially the same purpose as the original and is commercial. The [concept page](/topics/copyright/fair-use/) has the full reasoning. The question it leaves you with is sharper and much harder to fool yourself about: > **Does my use have a justification for copying this particular work, rather than merely being different from it?** Ask yourself, in order: - **Why this source and not any source?** If you are commenting on, criticizing, or parodying *this specific work*, the copying is justified because nothing else would do. If you grabbed this image because it was convenient, attractive, or free to download, you have no justification. You have a preference. - **What purpose does my version serve, stated in one sentence, and what purpose does the original serve, stated the same way?** If the two sentences are close, factor one is against you regardless of how much you changed the surface. If they are genuinely different, say a promotional poster reused as a dated historical artifact on a biography timeline, as in **[Bill Graham Archives v. Dorling Kindersley](/blog/bill-graham-archives-v-dorling-kindersley-historical-fair-use/), 448 F.3d 605 (2d Cir. 2006)**, you have something. - **Am I commenting on the work, or using the work to comment on something else?** This is the parody/satire line, and it is real. **[Campbell v. Acuff-Rose Music](/blog/campbell-v-acuff-rose-parody-fair-use/), 510 U.S. 569 (1994)** held that 2 Live Crew's commercial parody *may be* a fair use, and reversed and remanded rather than deciding the question, because the parody targeted Roy Orbison's song itself. A satirist borrowing a famous work to make a point about politics has weaker justification, because they could usually have made that point without borrowing. - **Is this commercial?** Commerciality weighs against you under the statute, but it does not decide anything by itself. *Campbell* involved a commercial parody and the Court still refused to treat commerciality as presumptively disqualifying. Treat this as a thumb on the scale, not a verdict. ## Factor two takes ten seconds. Don't spend longer on it. Factor two asks about the nature of the copied work. Two questions, then move on: - **Is the source creative or factual?** Songs, films, novels, and photographs sit at copyright's core and cut against you. Technical manuals, data compilations, and news reports leave more breathing room. - **Was it published?** Copying from unpublished material weighs meaningfully against you. **[Harper & Row v. Nation Enterprises](/blog/harper-row-v-nation-enterprises-unpublished-fair-use/), 471 U.S. 539 (1985)** turned partly on *The Nation* scooping an unpublished memoir. But § 107 expressly says unpublished status "shall not itself bar a finding of fair use." Factor two almost never decides a case. If most of your assessment time is going here, you are avoiding the factors that matter. ## Factor three: how much is too much, if there is no number? There is no number. There has never been a number. Not thirty seconds, not eight bars, not ten percent, not "under half." None of these appear in the statute or the case law, and every one of them has gotten someone sued. Two data points that should permanently kill the percentage instinct: - *Harper & Row* found infringement over roughly **300 to 400 words** from a full-length memoir, because those words were the heart of the book: Ford's account of pardoning Nixon. - **[Google v. Oracle](/blog/google-v-oracle-java-api-fair-use/), 593 U.S. 1 (2021)** found fair use for roughly **11,500 lines of copied code**, because those lines were a small, functional fraction serving a new purpose. So the useful factor-three question is not "how much did I take?" It is: > **Did I take more than my justification under factor one actually needs?** Which means factor three is downstream of factor one. If your purpose is criticism, every second of borrowed footage should be a second you say something about. If you did not discuss it, you did not need it, and it is now working against you. Then ask the second question: **did I take the heart of it?** The hook, the punchline, the reveal, the money shot. Taking the heart is fatal at any length. ## Factor four is the one that decides your case. Ask it brutally. If you have limited attention, spend it here. Market harm is where most fair-use assessments actually get resolved, and it is the factor people evaluate most dishonestly about their own work. Two questions, and answer them as your opponent would: **1. Can my version substitute for the original?** Would someone who encountered mine have no remaining reason to seek out theirs? If yes, you are in serious trouble regardless of how transformative your intentions were. **2. Am I stepping on a licensing market?** This is the one creators forget. The harm is not only lost sales of the original. It is lost *licenses*. If there is a functioning market where people pay to use this work the way you used it, and you skipped it, factor four bites. Competing licensing markets are precisely what sank the Warhol Foundation: the Foundation and Goldsmith were both in the business of licensing Prince images to magazines. They were competitors in the same market. Worth noting for accuracy: the Supreme Court resolved *Warhol* on factor one alone, since the Foundation never challenged the Second Circuit's ruling that factors two, three, and four all favored Goldsmith. The overlap in licensing markets did the damage through the purpose analysis. And the question is not whether *you personally* cost them money. It is whether uses **like yours, if they became widespread**, would displace demand for the work or its licenses. "But I'm small" is not the test. A useful gut check: **if a license for what you are doing is routinely available and reasonably priced, leaning on fair use is much riskier.** The existence of an easy licensing path is itself evidence of the market you might be harming. ## Which of my excuses are not actually arguments? Run this list before you talk yourself into anything. Every one of these is something creators say with confidence and none of them is the test. - **"I only used thirty seconds."** There is no duration rule. See factor three above. - **"I credited them."** Attribution is not one of the four factors. It can defuse a *plagiarism* accusation, which is an ethical claim, not a legal one. It does nothing to make infringement lawful. You can credit perfectly and lose completely. - **"It's non-commercial."** It helps under factor one. It is not a switch. Non-commercial uses lose all the time, usually on factor four. - **"It's educational."** Teaching is a favored purpose in the § 107 preamble, and it is not magic. Copying an entire textbook for a class or posting a whole film to a course site can still fail factors three and four badly. - **"No copyright intended."** This phrase has zero legal effect. Infringement is a strict-liability tort. Intent affects damages, not liability. - **"It was on the internet."** Publication is not abandonment. Nearly everything online is owned by someone. - **"I changed it a lot."** Post-*Warhol*, this is the weakest remaining argument in the pile. Different is not the question. Justified is. - **"They didn't lose any money."** Factor four is about the potential market, including licenses, evaluated at scale. If your entire fair-use position rests on one or more items from this list, you do not have a fair-use position. You have a hope. ## What risk tier is my use actually in? Fair use is decided case by case, so no category is safe. But use types cluster, and knowing your cluster tells you how much diligence the situation deserves. **Lower risk, when done honestly** - **Criticism and commentary.** The core of § 107. Short excerpts, each one discussed, no substitution. This is the strongest position available to most creators. Applied to video in [using movie and TV clips in your videos](/guides/using-movie-tv-clips-in-videos/) and [are reaction videos fair use](/guides/are-reaction-videos-fair-use/), and for how a fair-use position actually plays out inside YouTube's enforcement machinery, see [YouTube copyright claim vs. strike](/guides/youtube-copyright-claim-vs-strike/). - **Parody that targets the original.** *Campbell* territory, and commerciality does not disqualify you. The catch is that people call satire "parody" constantly. If your joke is not *about the borrowed work*, you are a satirist and you have less room. - **Search thumbnails and indexing.** **Perfect 10 v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007)** found Google's image thumbnails highly transformative because they converted expressive images into pointers to information. This is a narrow, purpose-specific holding, not a license to use small images. **Moderate risk, entirely fact-dependent** - **Education.** Favored, not exempt. Amount and market harm still govern, and course-pack and full-work cases have gone badly. The one genuine benefit here is at the damages end: § 504(c)(2) requires courts to **remit statutory damages entirely** for an employee or agent of a nonprofit educational institution, library, or archives who, acting within the scope of employment, infringed **by reproducing** the work and had reasonable grounds to believe the use was fair. A parallel prong covers public broadcasting entities, but only for performing published nondramatic literary works or reproducing a transmission program. Read those limits literally: they are narrower than "schools are covered." - **News reporting.** Favored, and *Harper & Row* is the standing warning that quoting the expressive heart of an unpublished work is a losing hand. - **Historical and documentary use.** *Bill Graham Archives* is real support, but it depended on genuinely repurposing images as artifacts, reproduced small, in a densely annotated context. **High risk** - **Music sampling.** The strictest corner of copyright in practice, with two copyrights stacked on every recording and a genuine circuit split on whether a de minimis defense even exists for sound recordings. The Sixth Circuit's *Bridgeport Music v. Dimension Films*, 410 F.3d 792 (6th Cir. 2005), said "get a license or do not sample"; the Ninth Circuit disagreed in *VMG Salsoul v. Ciccone*, 824 F.3d 871 (9th Cir. 2016). Assume you need clearance. See [music sampling and clearance](/guides/music-sampling-clearance/). - **Anything on a product you sell.** Commercial, substitutive, and easy to find. Read [using a song, font, or image on a product](/guides/use-song-font-image-on-product/) first. - **AI training data.** Genuinely unsettled, and the early rulings partition the question in ways headlines flatten. **[Bartz v. Anthropic](/blog/bartz-v-anthropic-ai-training-fair-use/)** (N.D. Cal. June 23, 2025) held training on *lawfully acquired* books was fair use while refusing to protect the pirated corpus, which then resolved in a reported $1.5 billion settlement. **[Kadrey v. Meta](/blog/kadrey-v-meta-ai-fair-use/)** (N.D. Cal. June 25, 2025) reached a similar result while telling future plaintiffs how to win, flagging a "market dilution" theory it did not decide. **[Thomson Reuters v. Ross](/blog/thomson-reuters-v-ross-ai-fair-use/)** (D. Del. Feb. 11, 2025) rejected fair use for a non-generative research tool built on Westlaw headnotes. The pattern worth extracting: **how you acquired the data may matter more than what you did with it.** If you are on the other side of this, see [AI training on your work](/guides/ai-training-on-your-work/). ## How do I document my reasoning, and does it help? Do it before you publish. Not after the letter. Be honest about what documentation buys you, because it is oversold. Contemporaneous notes will not convert an unfair use into a fair one. Courts weigh the factors on the facts, not on your memo. What notes actually do: - **They move the damages needle.** Under [17 U.S.C. § 504(c)](https://www.law.cornell.edu/uscode/text/17/504), a court may reduce statutory damages to as low as **$200** per work where the infringer "was not aware and had no reason to believe" the act was infringing, and **must remit** them entirely in the narrow nonprofit educational, library, archives, and public broadcasting situations described above. Documented reasoning is how you show reasonable grounds in either case. - **They defeat willfulness.** Willful infringement raises the statutory ceiling to **$150,000** per work. A record showing you thought carefully in advance is the cleanest answer to "you knew and you didn't care." - **They force honesty now.** Writing "my purpose differs from theirs because ___" and being unable to finish the sentence is the cheapest legal advice you will ever get. - **They shape the rightsholder's calculus.** A measured, factor-by-factor response to a demand letter reads very differently from panic. Keep it short and keep it dated. For each use, record: the source and where you got it, whether a license was available and what it cost, your one-sentence purpose versus theirs, why you needed that specific amount, and why you concluded your version does not substitute. A paragraph per use. Store it where you can find it in two years. One caution: notes written *after* a demand letter arrives are worth close to nothing and can look like manufacturing a record. The value is entirely in the timestamp. ## When should I just license it instead? Run the arithmetic rather than the ideology. Fair use is a genuine and important right, and it is also not free to exercise. **License when:** - A license is **routinely available at a market rate**. Stock photos, production music, and clip libraries exist precisely so this decision is easy. A $50 license against a five-figure defense is not a close call. - Your use is **commercial and substitutive**, or anywhere near the work's licensing market. - The work is **someone's livelihood** and small enough that your use plausibly displaces them. Small rightsholders are the ones motivated enough to sue. - The upside is **decoration**. If the borrowed work is not load-bearing for your point, the risk buys you nothing. Swap it. **Rely on fair use when:** - Your justification is real: you are criticizing, commenting on, or parodying *this* work, and no substitute source would serve. - A license is **not realistically available**, which is often the case for criticism, since rightsholders do not license people to attack them. This asymmetry is exactly why fair use exists. - You took the minimum your point needs and your version cannot substitute for theirs. There is also a third path people forget: **use something you do not need permission for.** Public domain works and appropriately licensed material eliminate the analysis entirely. See [public domain and Creative Commons](/guides/public-domain-creative-commons/). ## What do I do when the letter arrives? A cease-and-desist is a **private letter**. It is not a court order, it is not a finding, and it carries no independent legal force. It is one party asserting a claim, often in the most aggressive terms available, sometimes accurately and sometimes not remotely. What it does change: - **Notice.** Continuing the identical use after being told makes willfulness easier to argue, and willfulness is what takes the statutory ceiling to $150,000 per work. - **The clock.** Some letters carry real deadlines. Ignoring them does not make them go away. What to do, in order: **do not respond immediately**, preserve everything including your contemporaneous notes, do not delete the work before getting advice since that can look like consciousness of guilt and may not help anyway, and have counsel licensed in your jurisdiction read it before you reply. A confident DIY response is how people volunteer admissions. Details in [responding to a copyright demand letter](/guides/copyright-demand-letter/) and [accused of IP infringement](/guides/accused-of-ip-infringement/). Two structural points worth knowing in advance: - **Takedowns come before lawsuits.** A [DMCA takedown](/guides/dmca-takedown-explained/) is faster and cheaper for them than suing. Note that under **[Lenz v. Universal Music Corp.](/blog/lenz-v-universal-512f-fair-use-takedown/)** (9th Cir. 2015), a rightsholder must consider fair use in good faith *before* sending a takedown notice, though the court applied a subjective standard that makes § 512(f) claims hard to win. - **Not every dispute is federal court.** The [Copyright Claims Board](/guides/copyright-claims-board-small-claims/) hears small claims with damages capped at **$30,000 total and $15,000 per work**, it considers fair use, and participation is voluntary because a respondent can opt out. One more asymmetry that changes the math: under [17 U.S.C. § 412](https://www.law.cornell.edu/uscode/text/17/412), statutory damages and attorney's fees are generally unavailable unless the owner registered before the infringement began, or within three months of first publication. Whether the work you used was timely registered materially changes what the other side can realistically extract. See [copyright statutory damages](/guides/copyright-statutory-damages/). ## The bottom line Stop trying to determine whether your use *is* fair use. That question has no answer available to you, because the answer is produced by a court applying four flexible factors to facts, and only after someone has already sued you. Ask better questions instead. Does my use have a real justification for copying *this* work, or am I just different from it? Did I take more than that justification needs? Can my version substitute for theirs, or for a license of theirs? Those three questions, answered as your opponent would answer them, will grade your risk more accurately than any percentage rule ever will. Then act on the grade. Strong position, documented before publication, no license market in sight: proceed. Weak position, easy license, decorative benefit: buy the license and stop thinking about it. Genuinely uncertain and genuinely important: that is what counsel is for, before you publish rather than after the letter. The [U.S. Copyright Office Fair Use Index](https://www.copyright.gov/fair-use/) collects decided cases by category if you want to see how courts have handled facts near yours. And for the doctrine itself, the [fair use concept page](/topics/copyright/fair-use/) has the full four-factor treatment and the case archive. --- *This article is general legal information for educational purposes only. It is not legal advice, does not create an attorney-client relationship, and may not reflect the most current law in your area. Fair use turns on the specific facts of each situation. For guidance on your own project, consult an attorney licensed in your jurisdiction.* ## Frequently asked questions ### How do I know if my use is fair use before I publish? You do not, and no one can tell you with certainty, because fair use is an affirmative defense that only a court resolves definitively. What you can do is assess risk honestly. Ask whether your use has a real justification for copying this particular source rather than just any source, whether you took more than that justification needs, and whether your version can substitute for the original or for a license of it. If the honest answers are 'genuine commentary,' 'only what I discussed,' and 'no one would take mine instead of theirs,' you are in the defensible zone. If any answer is shaky, treat it as a risk decision rather than a legal conclusion. ### Does writing down my fair use reasoning actually help? It helps in narrow but real ways. Contemporaneous notes will not make an unfair use fair, and a court judges the four factors on the facts, not on your memo. But documentation matters at the margins: 17 U.S.C. 504(c)(2) lets a court reduce statutory damages toward the $200 innocent-infringement floor and requires remission entirely in two narrow situations: an employee or agent of a nonprofit educational institution, library, or archives who infringed by reproducing a work within the scope of employment, and certain public broadcasting uses of published nondramatic literary works, in each case where the person had reasonable grounds for believing the use was fair. Notes made before publication are also far more persuasive than reconstructions made after a demand letter arrives. ### When is buying a license cheaper than relying on fair use? Usually whenever a license is genuinely available at a routine market rate and your use is anywhere near the licensing market for the work. Compare the license price against the realistic downside: statutory damages under 17 U.S.C. 504(c) run from $750 to $30,000 per work, up to $150,000 per work for willful infringement, plus possible attorney's fees. Even a fight you eventually win costs money and time. If a stock photo costs $50 and a marginal fair-use argument costs you a five-figure defense, the arithmetic is not close. ### What does a cease-and-desist letter actually mean for my fair use argument? It means someone is asserting a claim, not that a court has rejected your defense. A cease-and-desist is a private letter with no independent legal force. It can be accurate, overstated, or entirely wrong, and senders routinely overstate. What it does change is your exposure: after you have been put on notice, continuing the same use makes a willfulness argument easier for the other side, which raises the statutory-damages ceiling. Do not ignore it, do not fire back a confident reply, and have counsel licensed in your jurisdiction read it before you respond.