Running a Fair Use Analysis: A Practitioner's Guide for Content, Software, and AI Training
By Casey Scott McKay ·
This guide is the working procedure for clearing a use under Section 107 before anyone gets sued, and for defending it afterward. It walks through thirteen stages — fixing the frame, filling the analytic worksheet, documenting purpose and justification, quantifying the taking, building market-harm evidence on both sides, scoring the risk, engineering mitigations, deciding whether to ask permission, placing insurance and indemnity, advising the four archetypal clients, responding to a demand, litigating the defense, and re-clearing when facts change. It carries one annotated example, a Portland roaster's use of a 1968 protest photograph, through every stage, and adds dedicated playbooks for a publisher, a documentary producer, a software team reimplementing an interface, and a model developer training on scraped data. It supplies model language for a use statement, a purpose memo, a permission request, a preserved license refusal, an opinion letter's operative paragraph, and a training-data warranty and indemnity, plus realistic costs and timelines for licensing, opinions, the Copyright Claims Board, and federal litigation through summary judgment. It closes with how fair use is actually resolved — Rule 12, Rule 56, and jury — and what the Warhol decision changed about the timing of that resolution. The doctrine lives in the companion article; this document is the execution.
IP and Technology > Copyright | Guide | Published 3 December 2023 - Updated 12 November 2025 | Casey Scott McKay - marksy.us
Summary. Fair use is decided after you are sued, which means the only thing you control is the record you built before. This guide sets out the procedure for building it: thirteen numbered stages from identifying the work and the owner through the written opinion, the permission decision, the insurance placement, and the litigation posture. It carries one annotated example — Brindle & Co.'s 1968 protest photograph — through every stage, and adds separate advisory playbooks for a publisher, a documentary producer, a software team reimplementing an interface, and a model developer training on scraped data. You get a repeatable worksheet, model language for the six documents that matter, evidence tables for both sides of factor four, a permission decision tree, realistic cost and timeline numbers, and an account of how the defense actually gets resolved at the pleading stage, on summary judgment, and at trial. The doctrine is in the companion article; this is the execution.
Keywords: fair use analysis · fair use opinion letter · 17 u.s.c. 107 · four factor worksheet · market harm evidence · licensing availability · transformative purpose · warhol v. goldsmith · ai training data · api reimplementation · documentary fair use · errors and omissions insurance · media liability coverage · ip indemnity clause · permission and clearance · dmca counter-notice · summary judgment on fair use · copyright claims board · statutory damages exposure · orphan works
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