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Oral History and Fair Use

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The following interactive tool is designed to assist archives and researchers in the decision making process for evaluating whether a particular circumstance of reuse of an archived oral history interview favors (or not) usage in accordance with the fair use privilege. This is a balancing test to help you visualize the factors in the 4-part test in the context of your intended circumstance. Results of this tool are intended to provide guidance and general information and do not constitute legal advice. This tool is derived (with permission) from the "Checklist For Conducting A Fair Use Analysis Before Using Copyrighted Materials" by Cornell University, which was revised by Cornell from the "Checklist For Fair Use," a project of the IUPUI Copyright Management Center.

Directions: Enter basic information about your inquiry and check all boxes that apply. After hitting the "submit button" your Fair Use recommendation will be displayed on the page and emailed to you.

Portion to be used (e.g. pages):


Favoring Fair UseDisfavoring Fair Use
  • Teaching (including multiple copies for classroom use)
  • Research
  • Scholarship
  • Criticism
  • Comment
Commercial, entertainment, or other
Transformative or Productive use (changes the work to serve a new purpose)
Non-transformative, verbatim/exact copy
Nonprofit use
Profit-generating use


Favoring Fair UseDisfavoring Fair Use
Factual, nonfiction, news
Creative (art, music, fiction), or consumable (workbooks, tests) work
Published work
Unpublished work


Favoring Fair UseDisfavoring Fair Use
Small quantity (e.g. a single chapter of journal article or other excerpt consisting of less than 10% of the work)
Large portion of entire work
Portion used is not central to work as a whole
Portion used is central or the "heart" of the work
Amount is appropriate to education purpose
Includes more than necessary for education purposes


Favoring Fair UseDisfavoring Fair Use
No significant effect on the market or potential market for the copyrighted work
Cumulative effect of copying would be to substitute for purchase of the copyrighted work
One or few copies made and/or distributed
Numerous copies made and/or distributed
No longer in print; absence of licensing mechanism
Reasonably available licensing mechanism for obtaining permission to use the copyrighted work currently available e.g. CCC licensing or off-prints available
Restricted access (limited to students in a class or other appropriate group)
Will be making it publicly available on the Web or using other means of broad dissemination
One-time use, spontaneous use (no time to obtain permission)
Repeated or long-term use

Many archival institutions possess oral history interviews that may not have release forms or deeds of gifts that clearly transfer copyright from the interviewees to the institution or to the repository. Full rights transfer in the form of deeds of gift or release forms is critical for empowering an institution with the authority to curate and provide future access to an interview. However, does the lack of a release form or deed of gift for interviews in your collection mean that these interviews are completely unusable? Not necessarily.

An increasing number of institutions address the lack of copyright for some of their legacy oral history collections by providing access to these interviews to patrons, specifically, for educational and research purposes.

In order for an archive to empower researchers or users with permissions to publish or redistribute an interview, that archive must possess copyright without providing the user/researcher the full range of permissions to publish or distribute that come with the copyright transfer.

In this arrangement, the responsibility of obtaining appropriate permissions to publish and reuse the oral history interview falls on the user/researcher when the archival repository has physical possession of, but not copyright for an oral history interview.

However, many forms of "re-use" of oral history interviews fall under the fair use doctrine, a privilege articulated in the Copyright act of 1976. In the most general sense, using a small portion of a copyrighted work for purposes of commentary, criticism, scholarship or news reporting is what this principle was designed to foster. Although the Copyright Act of 1976 sets out a four part test to help both copyright holders and would be users to try and determine whether a particular use is "fair" or not, there is a great deal of subjectivity involved:

   ♦  Purpose of the use

   ♦  Nature of the Copyrighted material

   ♦  Amount of the original work being used (in relation to the copyrighted whole)

   ♦  The effect on the market for the original

This tool is derived (with permission) from the "Checklist For Conducting A Fair Use Analysis Before Using Copyrighted Materials" by Cornell University, which was revised by Cornell from the "Checklist For Fair Use," a project of the IUPUI Copyright Management Center.

This checklist is a tool to assist you in applying the balancing test for determining whether you may make or distribute copies of works protected by copyright without having to obtain the permission of the copyright holder. 1 It is recommended that you complete and retain a copy of this form in connection with each "fair use of a copyrighted work.




There are numerous information resources on determining "Fair Use" of copyrighted materials:

The Copyright Crash Course: Fair use of copyrighted materials

University of Texas Libraries: http://copyright.lib.utexas.edu/copypol2.html