Fair Use Risk Assessment Checklist: Four Factors, Documentation, and Escalation

By Casey Scott McKay · 2024-05-20

This checklist takes one proposed or completed use of a third party's copyrighted work and drives it to a signed, dated decision — proceed, proceed with changes, license, or drop — across ten phases and a twelve-tab clearance file. It runs the threshold screens that make 17 U.S.C. § 107 unnecessary, fixes the work, the term, the owner, and the use, then walks the four statutory factors as an evidence-collection exercise rather than an argument. It supplies a numeric scoring grid, an escalation matrix keyed to who signs, insurance-notice triggers, and the mitigations that actually move a factor before production locks. It carries one matter — Brindle & Co.'s use of a 1968 wire-service photograph, matter FU-2026-014 — through every phase so the reader can see what a finished file looks like, including the point where the same photograph produces a −4 on a can and a +5 in a book. It closes with a litigation-readiness file mapped to a Rule 56.1 statement, a deadlines table covering § 412, § 512(g), the Copyright Claims Board opt-out, and the answer clock, and a set of docketed re-clearance triggers. The doctrine lives in the companion article and the reasoning in the companion guide; this document is the working paper.

IP and Technology > Copyright | Checklist | Published 20 May 2024 - Updated 12 January 2026 | Casey Scott McKay - marksy.us

Summary. Work this checklist top to bottom and you will finish with a dated, privileged clearance file for one use of one work: the threshold screens that avoid § 107 entirely, a Use Statement, a four-factor worksheet built from evidence rather than adjectives, a scored risk rating, an engineered set of mitigations, a signature from the right person at the right level, and a litigation-readiness binder that maps to a Rule 56.1 statement. Ten phases, twelve tabs, one worked matter carried through — Brindle & Co. and the Ferrante photograph, matter FU-2026-014 — including the moment where the same image scores −4 on packaging and +5 in a free neighborhood history. Deadlines, escalation thresholds, insurance triggers, and re-clearance dockets are set out in tables. The doctrine is in the companion article; the reasoning is in the companion guide; this is the paper you actually fill in.

Keywords: fair use risk assessment · section 107 checklist · four factor worksheet · use statement · transformative purpose · market harm evidence · licensing availability · permission request · risk scoring · escalation matrix · fair use opinion letter · litigation hold · privilege and work product · statutory damages exposure · section 412 registration timing · copyright claims board opt-out · dmca counter-notice · ai training provenance · re-clearance triggers · clearance file

What This Checklist Is For

What it does. Converts a question — "can we use this?" — into a signed decision with a paper trail. One work, one use, one file. Run it again for the next deployment, because the answer changes with the deployment.

Who should use it. In-house counsel and clearance managers at publishers, studios, agencies, platforms, and model developers; outside counsel giving a clearance opinion; and the litigator who inherits the file three years later and needs to know what the client knew and when.

What you need open before Phase 1.

A viewable copy of the source work, at the resolution or length actually proposed.
The proposed deployment in specifics: medium, size, duration, run length, territory, dates, and whether it touches advertising.
The hard business deadline and the name of the person who owns it.
Read access to the client's contract repository (agency MSAs, stock subscriptions, commissioning agreements, employment agreements).
The client's insurance schedule, including retroactive dates and the broker's contact.
Where the client is suable — the circuit whose fair use law will apply matters, and the companion article maps the variations.
A matter number and a docket entry. Undocketed clearance work does not get finished.

The worked matter. Brindle & Co. is a Portland cold-brew roaster: fourteen years old, roughly $14 million in revenue, forty-one employees. Marketing director Tasha Okonkwo wants a 1968 photograph of a civil-rights march crossing the Burnside Bridge — March on Burnside, by wire-service staff photographer Dolores Ferrante, now controlled by Meridian Archive for the Ferrante Estate — on a limited run of 5,000 cans. Intake 6 January 2026. Matter FU-2026-014. The same facts run through the practitioner's guide; here they run through the form.

| Phase | What it produces | Who owns it | Typical elapsed | | --- | --- | --- | --- | | 1 — Intake and threshold screens | A closed matter, or a confirmed § 107 question | Paralegal + counsel | 1-3 days | | 2 — Characterize the use | Tabs 1-3: Use Statement, term/status, owner search | Counsel | 3-7 days | | 3 — Four-factor worksheet | Tabs 4-6: purpose memo, amount audit, market file | Counsel + business owner | 5-15 days | | 4 — Alternatives and permissions | Tabs 7-8: correspondence, alternatives log | Rights/clearance | 2-8 weeks | | 5 — Documentation and privilege | Privilege labels, hold posture, channel discipline | Counsel | Concurrent | | 6 — Score the risk | Tab 9: scored grid and price comparison | Counsel | 1-2 days | | 7 — Engineer the mitigations | Tab 11: changed facts, re-scored grid | Counsel + creative | 3-10 days | | 8 — Sign-off and escalation | Tab 10: signature at the right level; carrier notice | Approver per matrix | 2-5 days | | 9 — Litigation-readiness file | Assembled binder; Rule 56.1 skeleton | Counsel | 1 day | | 10 — Re-clearance triggers | Tab 12: docketed triggers with a named owner | Docketing | 1 hour |

Phase 1 — Intake and the Screens That Make § 107 Unnecessary

[ ] Open a matter number, docket the business deadline, and record the requesting business unit and the decision date on the worksheet's first line.
- Why. The single most valuable feature of the file is that it is dated before the use. A worksheet with no intake date is a reconstruction.
[ ] Search the client's own contract repository for the asset by filename, photographer, agency, and campaign before you search anything else.
- Why. Agency master services agreements, stock subscriptions, and old commissioning contracts already cover a large share of intake calls. Fair use is the most expensive way to be right.
- Trap. "We have a Getty subscription" is not clearance. Standard stock subscriptions exclude packaging, merchandise, and logo use, and cap print runs. Pull the actual grant language and check the run limit against the proposed 5,000 units.
[ ] Confirm the client is not already the owner, and confirm the accuser would be.
- Authority. 17 U.S.C. § 205 (recordation); see Who Owns the Work and the Copyright Ownership and Chain-of-Title Checklist.
[ ] Ask whether anything you are taking is protectable at all, and write down the answer.
- Why. Copyright does not reach facts, ideas, procedures, systems, or methods of operation. 17 U.S.C. § 102(b). Restating a spec sheet or a docket entry in your own words is not a fair use of expression; it is a use of unprotected material, and it is a much stronger position. See Proving Copyright Infringement.
[ ] Run the non-§ 107 exceptions before you run § 107: library and archival reproduction (17 U.S.C. § 108), face-to-face teaching and TEACH Act transmission (§ 110(1)-(2)), essential-step and archival software copies by an owner of a copy (§ 117), accessible-format copies (§ 121), and interoperability circumvention (§ 1201(f)).
- Trap. § 1201(f) is narrower than the Sega fair use doctrine sitting beside it and carries its own damages regime. Engineering teams routinely assume the two are the same. They are not.
[ ] Check whether the material is a pre-1972 sound recording, which has its own federal term — and to which § 107 expressly applies. 17 U.S.C. § 1401(f)(1).
[ ] Close the matter in writing if any screen disposes of it, with a two-sentence memo naming the screen. A closed matter still needs a file.

Brindle, Phase 1. No prior license; the roaster's agency MSA covers commissioned work only. The photograph is plainly protectable expression — composition, moment, framing. No enumerated exception reaches a beverage can. Screens closed 7 January 2026; § 107 it is.

Phase 2 — Characterize the Use

[ ] Identify the work with precision and record which unit you are treating as "the work as a whole."
- Why. Factor three's denominator is the plaintiff's work, and the plaintiff picks the characterization. American Geophysical Union v. Texaco Inc., 60 F.3d 913, 925-26 (2d Cir. 1994) (the individual journal article, not the issue).
- Trap. One photograph inside a registered group registration is still one work for § 504(c) purposes if it was registered as a separately identifiable work. Do not assume the group registration collapses the count in your favor.
[ ] Run the term and status screen and show the arithmetic on Tab 2.
- Authority. 17 U.S.C. §§ 302, 304; U.S. Copyright Office Circular 15a (Duration of Copyright) and Circular 22 (How to Investigate the Copyright Status of a Work).
- Trap. For anything published in the United States before 1978, check the copyright notice on the copy as published. Publication without proper notice injected the work into the public domain, and wire-service prints and newspaper reproductions are a rich seam of notice defects.
[ ] For works published 1930-1963, verify renewal; for 1964-1977, note that renewal was automatic under the Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264, and the term is 95 years from publication.
[ ] Search the Copyright Office public records for registration, renewal, and recorded transfers, and record the search date, the databases used, and the exact search strings.
- Why. This printout becomes your reasonable-search file if the work turns out to be an orphan, and there is no US orphan-works statute to rescue you later.
- Trap. Pre-1978 registrations are not fully searchable online. Budget for the Catalog of Copyright Entries or a certified Copyright Office search under 37 C.F.R. § 201.2 (about $200, several weeks).
[ ] Identify the owner and the licensing channel: byline, embedded copyright management information, agency watermark, estate, recorded assignments.
- Trap. Stripping CMI to "clean up" a file is an independent claim under 17 U.S.C. § 1202(b) with its own statutory damages, entirely separate from infringement. Preserve the metadata.
[ ] Write the Use Statement: one present-tense sentence, on Tab 1, that a judge could read aloud without translation.
- Why. Every clause in it is a fact the plaintiff must plead and the client must defend. Writing it forces the business to say the purpose out loud, which is the point.
[ ] Record the jurisdictional footprint — where the client sells, ships, streams, and is suable — and name the circuit whose law you are applying.
- Trap. Fair use is American. A domestic clearance says nothing about the EU's text-and-data-mining regime, the UK's narrower research exception, or Japan's non-enjoyment provision.

Brindle, Tab 1. "Brindle & Co. will reproduce the whole of the 1968 Ferrante photograph March on Burnside, cropped to 6 x 3.5 inches at 300 dpi, on the exterior label of 5,000 12-ounce cold-brew cans sold at retail nationally between March and August 2026, with the caption 'Burnside Bridge, October 1968' and a credit reading '© Ferrante Estate,' to associate the Brindle brand with the anniversary of the march." Term: published 1968 with notice, automatic renewal, 95 years, in copyright through 31 December 2063. Registered by the wire service in 1969 — which means 17 U.S.C. § 412 is wide open and statutory damages are live.

Phase 3 — The Four-Factor Worksheet

Fill every field, including the ones that hurt. A worksheet with no adverse entries is not a worksheet; it is advocacy, and opposing counsel will read it that way.

Factor one — purpose, character, commerciality, justification

[ ] State the original's purpose as a fact, then state your use's purpose as a fact, and let the contrast do the work. Do not write "our use is transformative."
- Why. Warhol asks whether this use has a further purpose or different character than the original's, as a matter of degree, balanced against commerciality. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 532-35 (2023).
- Trap. A conclusion in a client declaration gets struck. A fact does not.
[ ] Classify commerciality honestly across three channels: direct revenue, indirect promotion, and cost avoidance.
- Authority. Saving the expense of buying authorized copies is commercial, A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001); so is using the work to induce purchase of something else, Compaq Computer Corp. v. Ergonome, Inc., 387 F.3d 403, 409 (5th Cir. 2004). Incidental use inside a larger enterprise carries less weight, Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622, 627 (9th Cir. 2003).
[ ] Name the justification for copying this work from the closed list, or record that there is none: the use targets the original (parody, criticism, review); the original is itself the news; the copy is documentary evidence of a historical fact; copying is necessary for interoperability or to reach unprotected function; or the use serves a genuinely different informational function, as with indexing.
- Trap. "It was the best image" and "we changed it a lot" are not justifications. Degree of alteration was never the statutory question.
[ ] Make the purpose visible on the face of the work — caption, framing, surrounding text, marketing — and photograph the layout for the file.
- Why. A critical purpose no viewer can perceive is one no court will credit. Testimony assembled after the complaint is the weakest evidence in the binder. Where the use is creative borrowing rather than analysis, run it against the Expressive Use and Parody Risk Checklist as well.

Factor two — nature of the work

[ ] Score the work on two axes and record both: creative versus factual, published versus unpublished.
- Trap. Unpublished status is no longer a per se bar — 17 U.S.C. § 107 (final sentence, added by Pub. L. No. 102-492, 106 Stat. 3145 (1992)) — but it still pushes factor two hard against you where the taking scoops the author's right of first publication.
[ ] For software, separate declaring code from implementing code and say which layer you took.
- Authority. Google LLC v. Oracle America, Inc., 593 U.S. 1, 30-31 (2021) (declaring code lies "further . . . from the core of copyright").

Factor three — amount and substantiality

[ ] Record a numerator, a denominator, and the measurement method: words, seconds, bars, lines of code, records, image dimensions and dpi.
- Trap. Never measure the taking against the size of your own product. The comparison is to the plaintiff's work as a whole.
[ ] Separately record what actually reaches the public, which may be far less than what you ingested.
- Authority. Authors Guild v. Google, Inc., 804 F.3d 202, 222 (2d Cir. 2015) (factor three measured against exposed snippets).
[ ] Run the heart audit: have someone who knows the work say whether a reader who saw only your excerpt would have the thing that makes the work valuable.
- Authority. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 564-66 (1985) (roughly 300 words of 200,000); Video Pipeline Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191, 201 (3d Cir. 2003) (a minute of a two-hour film can be too much if it discloses the resolution).
[ ] Log the cuts you rejected — the 90-second version, the 40-second version, the 12-second version you chose.
- Why. Factor three asks whether the amount was reasonable in relation to the purpose, not what percentage it was. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 588-89 (1994); Google v. Oracle, 593 U.S. at 34-35 (11,500 lines, 0.4% of the API).
[ ] If you are taking the whole work, state in one sentence why the whole was necessary.
- Authority. Whole-work takings have been fair where the photograph was the news, Nunez v. Caribbean International News Corp., 235 F.3d 18, 24 (1st Cir. 2000), and where an entire earnings call was disseminated for its financial information, Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 73, 90 (2d Cir. 2014).

Factor four — market effect

[ ] Obtain the owner's published rate card for this use type, and the three closest executed comparables you can find.
[ ] Build the harm table on both sides — yours and the one a plaintiff's economist would build — and put both in the file.

| Evidence | You collect to show no harm | They will collect to show harm | | --- | --- | --- | | Rate cards and license history | No license has ever been sold for this use type | Published rates and executed comparables for exactly this use | | Sales data | Owner's revenue flat or rising after comparable uses | Time series showing a drop coincident with the use | | Substitution | Your output does not serve the demand the original serves | Consumers treat the two as interchangeable | | Product design | Resolution caps, snippet limits, output filters, rate limits | Evidence the limits are cosmetic or bypassable | | Owner's plans | No documented intent to enter the claimed market | Board decks, budgets, pilot deals showing planned entry | | Aggregate conduct | Widespread conduct of this kind would not supplant the work | Campbell, 510 U.S. at 590 ("unrestricted and widespread conduct of the sort") |

[ ] Write the circularity rebuttal in the file, in these words: a licensing market that exists only because defendants like this one have started paying is not a market Campbell protects.
- Authority. Campbell, 510 U.S. at 592 (derivative markets limited to those creators "would in general develop or license others to develop"); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 614-15 (2d Cir. 2006).
[ ] Test licensing availability excerpt by excerpt, not work by work, and record price, terms, and any approval rights demanded.
- Authority. Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. 2014).
- Trap. Never accept editorial approval rights from the subject of your criticism. A license that lets the owner edit the commentary is worse than no license.
[ ] Note who bears the burden on this record: commercial and non-transformative, you must show absence of harm; noncommercial, the owner must show likelihood of harm, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984); transformative, courts generally demand non-speculative proof of harm to a traditional market.
[ ] If a model or a dataset is involved, add a market-dilution entry — the theory that machine-generated substitutes suppress demand for human-authored work — and say which side of it you are on.
- Authority. Kadrey v. Meta Platforms, Inc., No. 3:23-cv-03417 (N.D. Cal. June 25, 2025). Provenance is now its own liability question: Bartz v. Anthropic PBC, No. 3:24-cv-05417 (N.D. Cal. June 23, 2025). Corpus registers and output guardrails are set out in the Generative AI IP Compliance Checklist and the AI, Content, and IP Toolkit.

Phase 4 — Alternatives and Permissions

[ ] List every alternative the team considered and why each failed, in one line apiece, on Tab 8.
- Why. This forecloses the "any other work would have done" objection, which is where satire loses and where Warhol's justification question bites.
[ ] Get a written price for the license before you decide you cannot afford it. Ask for a rate for the exact deployment, not a category.
[ ] Send the permission request with a deadline and a reservation of rights, and calendar the follow-up at three weeks.
- Why. Requesting and being refused does not weigh against fair use. Campbell, 510 U.S. at 585 n.18. It is close to a free option: it may produce a cheap license, and a refusal is affirmative evidence there is no functioning market for the use.
- Trap. Do not let the business email the request. In Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 983 F.3d 443 (9th Cir. 2020), the defendants' own internal discussion of seeking a license helped prove a licensing market existed. Route it through counsel and keep it in one thread.
[ ] Ask for every right you will plausibly need in one negotiation: media, formats, editions, territory, term, exclusivity, advertising and promotion, sublicensing to distributors and platforms, credit, a warranty of ownership, and an indemnity.
- Trap. Most standard grants exclude advertising, and the cover of the book is advertising. Coming back for the paperback, the audiobook, and the EU is three negotiations at three prices.
[ ] Preserve the non-response. Two dated letters and a delivery confirmation are a better exhibit than any brief.
[ ] Screen the same asset for the rights that ride along with it: third-party brands in frame, identifiable people, private property, and music on the soundtrack.
- Why. One photograph can carry copyright, trademark, and publicity claims with three different tests. Run the parallel screens in the Trademark Fair Use Audit Checklist, the Name, Image, and Likeness Clearance Checklist, and — if there is a note of music anywhere — the Music Clearance Checklist. The combined workflow is in the Fair Use and Permissions Toolkit.

Brindle, Tab 7. Requests to Meridian Archive on 14 January and 4 February 2026. Meridian quotes $19,500 for national packaging rights on a 5,000-unit run, with approval over the caption. It quotes $340 for a one-time editorial reproduction in a non-commercial print run under 5,000 copies. Two prices, one photograph — which is the market telling you, before you score anything, that these are two different uses.

Phase 5 — Documentation and Privilege

[ ] Label every clearance document Privileged and Confidential — Attorney-Client Communication / Attorney Work Product, address it to counsel, and record that it was prepared at counsel's direction.
- Authority. Upjohn Co. v. United States, 449 U.S. 383 (1981); Fed. R. Civ. P. 26(b)(3).
- Trap. A risk assessment circulated among business staff with no lawyer on it is a business record, and it will be produced. Labels do not create privilege, but their absence forfeits it.
[ ] Give the team one instruction and repeat it: raise the question to counsel, not to each other.
- Why. The worst exhibit in a copyright case is almost always written by an employee trying to be careful. "Nobody will notice" and "do we really need the license?" are the two sentences that price the settlement.
[ ] Decide now, in writing, whether the client intends to rely on advice of counsel, and tell the client what that costs.
- Why. Asserting good-faith reliance to rebut willfulness invites a subject-matter waiver over the opinion and its factual predicates. Usually a trade worth making — but make it deliberately, not by accident at a deposition.
[ ] Negotiate a Fed. R. Evid. 502(d) order early in any matter where the clearance file will be produced.
[ ] Store the file in one place with immutable dates. Numbered tabs, not a shared drive folder named "photo stuff."
[ ] If a demand has already arrived, issue the litigation hold the same day and suspend auto-deletion across email, chat, design files, build artifacts, and any dataset register.
- Authority. Fed. R. Civ. P. 37(e); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003).
- Trap. Do not pull the accused material down before you have preserved it in its deployed form, with metadata. Spoliation converts a defensible case into an indefensible one.

Phase 6 — Score the Risk and Price It

[ ] Score each factor from −2 (strongly against) to +2 (strongly favors) and write one sentence of evidence under each score. No score without a citation to a tab.
[ ] Apply the two conventions that keep the grid honest: any −2 on factor four is a stop, and a 0 on factor one is not neutral, because the defendant carries the burden.

| Composite | Reading | Action | | --- | --- | --- | | +5 to +8 | Strong | Proceed. Memo to file. | | +2 to +4 | Defensible | Proceed with Phase 7 mitigations and a written memo. | | −1 to +1 | Genuinely uncertain | Escalate. Price the license against the exposure. Formal opinion if proceeding. | | −2 to −4 | Weak | Seek permission, redesign, or drop. Named-executive sign-off if proceeding. | | −5 or worse | Do not | The only question left is who tells the client. |

[ ] Check 17 U.S.C. § 412 before you price anything, and record the registration effective date next to the score.
- Why. Registration before the infringement began, or within three months of first publication, unlocks statutory damages of up to $30,000 per work — $150,000 if willful — plus fees. 17 U.S.C. §§ 412, 504(c), 505. Without it the owner is limited to actual damages and profits, and the economics of suing collapse. See What Copyright Registration Actually Buys You.
[ ] Write the exposure as an arithmetic sentence: works × ceiling + realistic defense cost, against the license quote.
- Trap. Multiply by the number of works, not the number of uses. A photo program of forty images is forty statutory awards.
[ ] Give the client a number and a recommendation, not a vibe. "Roughly a one-in-three loss if litigated, against $19,500 to license and a realistic $600,000 to defend" is advice; "fair use is fact-specific" is a fact about the doctrine.

Brindle, Tab 9, first pass — the can. Factor one −2 (same commercial gravity as the original's licensing market, no commentary, no justification for this image over any other). Factor two −1 (creative published photojournalism). Factor three −1 (whole image, cropped, at full label size). Factor four −2 (Meridian actively licenses packaging rights and quoted a price). Composite −6. A −2 on factor four is a stop, and the composite is below the floor. The can does not proceed on § 107.

Phase 7 — Engineer the Mitigations and Re-Score

[ ] Ask the question that earns the fee: what would have to change for this to score +2?
[ ] Move the material out of advertising and into editorial, and treat the cover, the trade-show booth, and the paid social ad as separate uses with separate answers.
- Why. Commerciality is calibrated, not binary; a use that does not exploit the expressive value of the original carries less weight. Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132, 141-42 (2d Cir. 1998).
[ ] Cut the taking to what the purpose requires, and put the analysis around it so the purpose is visible.
[ ] Reduce resolution, size, or duration to the minimum that serves the purpose, and retain rather than strip CMI.
- Authority. 17 U.S.C. § 1202(b).
[ ] Crop out what you do not need — including, for images, the context-setting elements you are not using.
- Authority. Blanch v. Koons, 467 F.3d 244, 257-58 (2d Cir. 2006).
[ ] For software, reimplement only the interface, clean-room the implementation, log the wall, and destroy the intermediate copies.
[ ] For datasets and models, buy or license the corpus, deduplicate, cap memorization, filter outputs, log filter efficacy, and never retain a pirated set "for later."
[ ] Attribute. It is not a defense, but courts notice. Nunez, 235 F.3d at 23.
[ ] Re-score the changed facts on a new grid, dated, and keep the first grid. The delta between them is the most persuasive document in the file.
- Trap. Mitigations engineered after the master is delivered or the model is trained cost six figures. The same changes cost nothing three weeks earlier. This is the entire argument for clearing early.

Brindle, Tab 11, second pass — the book. The can gets an original commissioned illustration ($4,200, Portland illustrator, work-made-for-hire agreement executed 12 February 2026). The photograph moves into A Bridge and a Crossing, a 40-page neighborhood history distributed free in a 3,000-copy print run, reproduced at half-page beside 620 words analyzing how three wire services cropped the same negative to different political effect, with the two competing crops shown for comparison. Re-score: factor one +2, factor two −1, factor three +2 (whole frame necessary because the crops are the argument), factor four +2 (Meridian's own $340 editorial rate is served, not displaced, and no packaging market is touched). Composite +5. Same client, same photograph, opposite result.

Phase 8 — Sign-Off, Escalation, and Insurance

[ ] Route the signature to the level the score demands, and get it before the use, not after.

| Composite | Who signs | Also required in the file | Insurance step | | --- | --- | --- | --- | | +5 to +8 | Clearance manager | Worksheet, Use Statement | None | | +2 to +4 | Associate GC or outside counsel of record | Purpose memo, mitigation verification | Note the use in the annual renewal schedule | | −1 to +1 | General counsel, with written business-owner acknowledgment of the risk | Formal opinion letter | Confirm media E&O retro date covers the use date | | −2 to −4 | Named executive officer (CMO or CEO) countersignature | Opinion letter, permission correspondence, board-level risk register entry | Pre-notify the broker; confirm limits and retention | | −5 or worse | Nobody. The use does not proceed | Memo recording the decision and the alternative adopted | None |

[ ] Commission a formal opinion letter whenever a third party will rely on it — distributor, platform, insurer, acquirer — and scope it to a schedule.
- Trap. An unscoped opinion is a liability. State the standard ("more likely than not"), limit it to identified excerpts and identified uses, carve out advertising and promotion expressly, disclaim non-US law, and disclaim adjacent trademark, publicity, and contract claims.
[ ] Give notice to every carrier potentially on risk the week a demand letter arrives — primary, umbrella, excess, cancelled policies covering the period when the conduct began, and the policies of predecessors and acquired entities.
- Why. Notice obligations trigger on a cease-and-desist letter, not on service of a complaint, and late notice is a coverage defense insurers win. The duty to defend is broader than the duty to indemnify in most states.
- Trap. CGL Coverage B reaches copyright infringement only in the insured's "advertisement," and many forms carry an IP exclusion that swallows everything else. Media and technology E&O are the real products; check the retroactive date against the first date of use, not the date of the claim.
[ ] For deal contexts, flag any unresolved fair use position as a diligence item with a number attached — a specific indemnity, an escrow, or a price adjustment, not general reps coverage. See the IP Due Diligence Toolkit.
[ ] Escalate immediately, regardless of score, on any of four triggers: the owner is a known repeat litigant; the use is the centerpiece of a campaign; a regulator, platform, or distributor has already asked about it; or the client wants to establish precedent that this class of use is fair. That last one is a legitimate corporate posture, but it is a board decision, not a clearance decision.

Phase 9 — Build the Litigation-Readiness File

[ ] Assemble the twelve tabs in order and index them: (1) Use Statement; (2) term and status; (3) owner and licensing channel; (4) purpose and justification memo; (5) amount audit and rejected cuts; (6) market evidence, both sides; (7) permission correspondence; (8) alternatives log; (9) scored grid; (10) sign-off; (11) mitigation verification; (12) re-clearance docket.
[ ] Draft the four-paragraph skeleton of a Rule 56.1 statement now, one paragraph per factor, each citing a tab.
- Why. Fair use is resolved on summary judgment far more often than at trial. Authors Guild v. Google, Google v. Oracle, Hachette Book Group, Inc. v. Internet Archive, 115 F.4th 163 (2d Cir. 2024), and Thomson Reuters Enterprise Centre GmbH v. Ross Intelligence Inc., No. 1:20-cv-00613 (D. Del. Feb. 11, 2025), all arrived there. Your undisputed-facts statement should already exist, with exhibit numbers.
[ ] Name the Rule 30(b)(6) witness for the topic that decides the case — "the process by which the decision to use the work was made, and all alternatives considered" — and confirm that person's contemporaneous documents are in the file.
[ ] Verify the plaintiff-side elements you would test first: a registration decision (not a pending application) before suit, Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019); a clean recorded chain of title; and the three-year limitations period, 17 U.S.C. § 507(b), read with Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014). The elements are laid out in the Copyright Infringement Complaint Checklist and, from the other chair, in Filing a Copyright Infringement Complaint in Federal Court.
[ ] Preserve the Rule 12(b)(6) option by keeping both works in a form that can be attached to a motion.
- Authority. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690-92 (7th Cir. 2012); dismissal is available where both works are before the court, the purpose is apparent, and no market harm is pleaded.
[ ] Plead fair use as an affirmative defense in the answer. Fed. R. Civ. P. 8(c).
[ ] Record, in one page, why the position was objectively reasonable when taken.
- Why. It rebuts willfulness under 17 U.S.C. § 504(c)(2), and it drives fee-shifting: Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197, 208-09 (2016), directs courts to give substantial weight to the objective reasonableness of the losing position, guided by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).
[ ] If the matter arrived as a takedown rather than a letter, do the counter-notice math before you file one, and check whether the sender formed the good-faith belief § 512(c)(3) requires.
- Authority. 17 U.S.C. §§ 512(f), (g)(3); Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016). See The DMCA Safe Harbor, Sending and Fighting a DMCA Takedown, and the DMCA Takedown Notice Checklist.
- Trap. A counter-notice requires consent to jurisdiction where the user resides or where the service provider may be found. For a small or foreign user that is a real concession, not a formality.
[ ] Route the first response to any demand through counsel. The posture options and their costs are in Responding to a Cease-and-Desist Letter; the structure of the demand you are answering is in Sending an Effective Cease-and-Desist Letter and the Cease-and-Desist Letter Template.

Phase 10 — Docket the Re-Clearance Triggers

[ ] Enter each trigger on Tab 12 with a named owner and a review date. Unowned re-clearance never happens.
[ ] Docket the six triggers that actually fire: new medium or format; new territory; new term or campaign extension; migration of editorial material into advertising; a change in the owner's licensing behavior; and retraining or fine-tuning on a new corpus.
- Trap. The most common failure in this entire checklist is material cleared for editorial use appearing eighteen months later in a sales deck. Put the scope limits in the asset's metadata and in the DAM record, not only in the legal file.
[ ] Set the cadence: annual for a content library, per-release for software and models, per-campaign for advertising.
[ ] Docket the legal triggers too — the Third Circuit's disposition of the Ross appeal and the first appellate ruling on market dilution will each require a portfolio-wide re-read.
[ ] Re-check any reliance on a § 1201 exemption each triennial cycle; the exemptions adopted in the 2024 rulemaking lapse when the next cycle concludes in late 2027. 37 C.F.R. § 201.40.

Common Mistakes

Clearing the work instead of the use. One asset, four deployments, four answers. Warhol says so expressly: "the same copying may be fair when used for one purpose but not another." 598 U.S. at 533.
Writing the analysis after the complaint. Contemporaneous documents win; reconstructions get impeached.
Skipping Phase 1. The client often already owns it, or there is nothing protectable, or § 108, § 110, § 117, or § 121 disposes of it with no balancing at all.
Treating advertising as part of the editorial clearance. It is a separate, commercial use, and it is where publishers and producers get caught.
Not checking § 412. Registration timing is the difference between an $8,000 problem and a $2 million one.
Letting the debate live in chat. Route it to counsel; the alternative is an exhibit.
Not asking permission because "it hurts us." It does not. Campbell, 510 U.S. at 585 n.18. A refusal is evidence in your favor.
Measuring the taking against your own work. The denominator is the plaintiff's work, and the plaintiff picks the unit.
Retaining what you do not need. Pirated corpora, intermediate copies, unused footage. Provenance and retention are now independent liability questions.
Late notice to insurers. The obligation triggers on the demand letter.
Stripping metadata. § 1202(b) is a separate claim with separate damages, and it survives when the infringement claim narrows.
Assuming the US answer travels. It does not. Fair use is American.

Deadlines at a Glance

| Trigger | Deadline | Authority | Note | | --- | --- | --- | --- | | Owner's registration | Before infringement began, or within 3 months of first publication | 17 U.S.C. § 412 | Decides whether statutory damages and fees are on the table | | Demand letter received | Litigation hold the same day | Fed. R. Civ. P. 37(e); Zubulake, 220 F.R.D. at 218 | Suspend auto-deletion before anything else | | Demand letter received | Carrier notice as soon as practicable — same week | Policy conditions | Tender to every policy potentially on risk | | Your content taken down by a § 512(c)(3) notice | Counter-notice under § 512(g)(3); restoration in 10-14 business days | 17 U.S.C. § 512(g)(2)(C) | Requires consent to jurisdiction | | Served with a Copyright Claims Board claim | Opt out within 60 days of service | 17 U.S.C. § 1506(i) | Caps: $30,000 per proceeding, $15,000 per work, § 1504(e) | | Served with a federal complaint | Answer with the Rule 8(c) fair use defense in 21 days; 60 days if service was waived | Fed. R. Civ. P. 12(a)(1)(A), 4(d)(3) | Plead it or fight about waiver | | Claim accrual | 3 years | 17 U.S.C. § 507(b); Petrella, 572 U.S. 663 | Discovery-rule application varies by circuit | | Plaintiff filing suit | Registration decision required, not a pending application | 17 U.S.C. § 411(a); Fourth Estate, 586 U.S. 296 | Check this before you concede anything | | Summary judgment | Default 30 days after the close of all discovery | Fed. R. Civ. P. 56(b) | Local rules and scheduling orders usually displace it | | § 1201 exemption reliance | Lapses at the end of each triennial cycle; the 2024 set runs into late 2027 | 37 C.F.R. § 201.40 | Re-clear every cycle | | Certified Copyright Office search | Several weeks; about $200 | 37 C.F.R. § 201.2 | Order it early if the term screen is contestable | | Re-clearance review | Annual (library), per-release (software, models), per-campaign (advertising) | Practice | Tab 12, named owner |