9th Cir. Model Jury Instr. (Civil) 17.23

One who is not the owner of the copyright may nonetheless use the copyrighted work certain circumstances without the consent of the copyright owner. Such use of a copyrighted work is called a fair use. The owner of a copyright cannot prevent others from making a fair use of the owner’s copyrighted work.

The defendant [name] contends that [he] [she] [other pronoun] made fair use of the copyrighted work for the purpose of [criticism] [comment] [news reporting] [teaching] [scholarship] [research] [other purpose alleged]. The defendant [name] has the burden of proving the defense by a preponderance of the evidence.

In determining whether the use made of the work was fair, you should consider the following factors:

the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

the effect of the use upon the potential market for or value of the copyrighted work; and

[(5) [insert any other factor that bears on the issue of fair use].]

If you find that the defendant [name] has proved by a preponderance of the evidence that the defendant made a fair use of the plaintiff [name]’s work, your verdict should be for the defendant [name].