Copyright, Public Domain and Fair Use Basics
This guide is not a substitute for legal advice. It is a collection of resources to help you understand your responsibilities.
Copyright provides protection for the owners of creative works, granting exclusive rights on how those works may be used by others. The U. S. Constitution establishes this right in Article I, Section 8:
"The Congress shall have Power ... "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Fair use is a concept embedded in U.S. law that recognizes that certain uses of copyright-protected works do not require permission from the copyright holder. The law considers four factors in determining fair use. (See Title 17, section 107)
First determine if the use of the material is for criticism, comment, news reporting, education, scholarship or research. If the answer is no, apply for permission to use it. If the answer is yes, see if you can apply the following four factors.
Factor 1: Purpose and character of the use
For what reason (educational/non-profit/commercial) will the work be used?
Personal, non-profit, and educational (especially in a classroom setting) use weighs is favor of fair use, although that alone does not justify it.
Is the work being used for parody, commentary, or criticism?
Use of the work for a new purpose or in a new way weighs in favor of fair use.
Is the work being used to create something new or add value to the work?
If your use of a work is "transformative," you can more likely claim fair use than if you were to simply copy the work.
Factor 2: Nature of the work
Does the work contain facts (like a biography) or is it imaginative (like a novel)?
Use of fact-based works is more likely to be considered fair than use of creative works.
Is the work published or unpublished?
Use of published works favors fair use; use of unpublished works does not favor fair use.
Factor 3: Amount of the copyrighted work used
What amount of the work do you want to use?
There are no clear guidelines for what amount of a work constitutes fair use; it must be considered in relation to the whole. In general, the less used, the more likely you can claim fair use.
Is the amount you want to use the "heart" of the work?
Use of the defining or signature part of a work weighs against fair use.
Are you using only what is absolutely necessary?
The less used, the more likely you can claim fair use. Use of extraneous material weighs against fair use.
Factor 4: Effect of the use upon the market
Will your use of the work cause the copyright owner to lose income?
If your use prevents people from purchasing the copyright holder's work, it is difficult to argue fair use. For instance, if this use replaces a coursepack that students otherwise would be required to purchase, you would have a difficult time claiming fair use.
Campus Guide to Copyright Compliance (Copyright Clearance Center)
Fair Use Checklist (Copyright Clearance Center)
Major Fair Use Guidelines (Columbia University)
Fair Use Evaluator - Online Tool
Transformative use is a relatively new addition to the original four factors of fair use. It was first presented in the Supreme Court Case, (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994.)
A work is considered transformative if it uses the original source of work in a completely new and unexpected way.
Parody or any work that criticizes or comments on an original work may be considered transformative.
Use in New Technologies, such as search engine companies making thumbprint size copies of images to put them into a searchable format.
Other Transformative Uses, such as creating audio and video mixes and remixes.
Understanding Fair Use - The University of Minnesota https://www.lib.umn.edu/copyright/fairuse
Creative Commons Attribution-Noncommercial License