Four Factors of Fair Use – Fourth Factor: The Effect of the Use on the Potential Market

Assessing the fourth factor of fair use can be the trickiest, because one needs to consider existing and potential markets for the work, including secondary markets, which might include translations, movie rights, or images on mouse pads or coffee mugs. Uses that can result in lost sales for already established markets tend to be determined as not a fair use by the courts. Another consideration for this factor is whether or not there is a reasonable way to purchase or license the work; typically, courts will rule against fair use if this was an option. Uses that cause minimal harm, or that would generate transformative markets will weigh more heavily in favor of fair use. The effect on potential markets is also linked to the purpose of the use. If you are using material from an article for education, research or scholarship, a potential harmful effect on the market may be difficult to prove. However, if you are using the material for commercial purposes, effect on potential markets may be easier to prove and result in a finding against fair use. Questions to ask when applying this factor: Could your use result in lost sales? What would happen if everyone used the work as you plan to? Is there a reasonable way to purchase or license the work?

Check out these LibGuides for more information on copyright, fair use, and finding and using images:

Questions? Contact Peggy Tahir, Education & Copyright Librarian.

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