The four factors judges consider are:
1. The purpose and character of your use
- Has the material you have taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
The issue here is whether you have used the material to make something new or if you have just copied the same material into another work. Purposes such as scholarship, research, or education qualify as transformative.
2. The nature of the copyrighted work
Due to the facts provided in works such as biographies, you have more freedom to copy from those works. In addition, if you copy the material from a published work that an unpublished work, you will have a stronger case of fair use.
3. The amount and substantiality of the portion taken
The less you take, the more likely that your copying will be excused as a fair use. Although, copying a small portion wouldn’t be considered fair use if you copied the core of the article.
4. The effect of the use upon the potential market
This factor of determines whether your use deprives the copyright owner of income or creates a new or potential market for the copyrighted work. If you deprive a copyright owner of income you are very likely to trigger a lawsuit.
For example, “In one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a fair use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed.” (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).