Copyright

Copyright basics for instructors, authors, and students.

Citing and Attribution

Most academic use of copyrighted works falls easily into Fair Use because:

  • a minimal amount of the work is used
  • scholarship and research are the reasons for use of the work

Copyright and good scholastic practice means you should attribute or cite direct quotes and points of fact that aren't common knowledge.

Notice

  • The contents of this page do not constitute legal advice or a legal opinion
  • The information resources listed here have been compiled from a variety of sources

Fair Use

Fair Use lets people use copyrighted works without the copyright owners' permission. 17 U.S. Code § 107 sets out instances where this is permitted:

  • criticism and comment
  • news reporting
  • teaching, scholarship, and research

The rest of the section outlines four factors which need to be weighed when considering if your use is Fair Use or requires the copyright owner's permission. There are no hard and fast metrics or rules associated with the four factors. Even in court cases, judges make their own assessment of Fair Use based on their interpretation of the four factors.

The four factors are:

  • the purpose and character of the use, including whether such 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

When you ask if a use is Fair Use, the answer is usually 'it depends'. Each case is unique. You and your institution's ability to tolerate risk will need to be considered also. Remember, Fair Use is a consideration of all the factors. You need to understand each factor and then consider them together.

Factor 1: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

Purpose and character of the use
You can use copyrighted material without permission if you create something new or different with it. This is currently called transformative use. Cutting and pasting text into your essay without attribution is not transformative. Using that text as the background of a collage that makes a different statement could be considered a new use. The text wasn't originally written as visual art.

Commercial nature v nonprofit educational purposes
While teaching is a favored activity in copyright law, this doesn't mean any use of copyrighted material for any educational purpose is permissible. Use of commercial material in online courses is particularly fraught and the current Georgia State case is a good example of this. On the flip side, just because a copyrighted work is used within a new commercial work doesn't doom that new work. If the other three factors are in favor of the new use, the commercial use could be considered Fair Use.

Remember, Fair Use is a consideration of all the factors. You need to understand each factor and then consider them together.

Factor 2: The nature of the copyrighted work

All copyrighted works are not protected equally. Literary and creative works receive more protection than works of fact. Unpublished works receive more protection than published works.

If you are using a large portion of a copyrighted work, you'll generally have a more difficult time arguing Fair Use if the work you're using is literary or unpublished.

Remember, Fair Use is a consideration of all the factors. You need to understand each factor and then consider them together.

Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

In general, using less of a copyrighted work is better and keeps you within the bounds of Fair Use. That word 'substantiality' is tricky, though. If the bit you use is the 'heart of the work', your use may not be considered a Fair Use. Again, there are no hard rules about percentage or number of pages for your specific use.

Remember, Fair Use is a consideration of all the factors. You need to understand each factor and then consider them together.

Factor 4: The effect of the use upon the potential market for or value of the copyrighted work

Copyright exists to allow authors and creators to realize an income from their work. If your use of a copyrighted work diminishes that income or closes a potential market, then your use is not a Fair Use. Most lawsuits you've heard about involving Fair Use are because copyright owners are claiming financial harm due to an infringing use.

Remember, Fair Use is a consideration of all the factors. You need to understand each factor and then consider them together.

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Other Important Topics

Orphan Works are published works whose copyright ownership can not be determined. Following Fair Use and proper citation rules is always a good practice. The documents below offer guidance from different groups.

At some point in your research you may need to use documents, images, or films that were created for personal purposes and not intended to be published to the world. Archives specialize in this kind of material; their collections contain personal correspondence and papers, personal photos and films, as well as internal documents of businesses or institutions (as well as some published materials).

You should follow Fair Use guidelines when you use archival materials. In addition to copyright, use of archival items may be restricted by a 'deed of gift'. This is when the donor asks the archives to place restrictions on the use of the gifted material. An example would be that personal correspondence not be quoted or reprinted in books or articles until after the deaths of the correspondents.

The archivist, their catalog, or their website will be able to tell you if any restrictions apply to the material you are using. You will also be asked to acknowledge the archive when you cite the information. The catalog entry for the Isaiah Bowman papers and a page on the Lester S. Levy Sheet Music Collection provide examples of this.

Curious about finding and using archival material? Start with the University Archives website.

The term 'public domain' indicates that there is no copyright on the item so labeled. This means you can use all or part of the work in any way you wish. You don't need to ask permission, follow Fair Use guidelines, or use it only in teaching.

Public Domain is problematic only because items fall outside of copyright protection based on time. Since the law has been revised several times, this gives US works several different timelines for Public Domain. The basic rule of thumb is that items published (in the US) prior to 1923 are not in copyright.

Want to learn more? Check out the links below.

Just because it's easy to incorporate digital media into your own work, doesn't give you license to indiscriminately utilize other people's digital work. Most of that work is copyrighted, and you must follow guidelines of Fair Use and good scholarship, as described throughout this guide. Creators of digital media often use Creative Commons licenses on their work. If you see the Creative Commons logo, you must read the license and use their work appropriately. Falling back on Fair Use guidelines is always an option.

A page specializing in image copyright is available for you.

We also have a page focused on using multimedia in teaching, which is a special case.

You may have to try to locate a copyright owner at some point. Perhaps you want to make extensive use of an item, but you don't know who holds the copyright. The resources below can help you with the search. You can always contact your librarian, or even a copyright attorney for assistance.

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