Additional Options

Lesson 4: Putting It All Together

Copyright & Fair Use

4.1 Putting It All Together

Through the past three lessons, you have learned:

  • use of other people’s creative works may be limited by copyright protection,
  • facts and ideas cannot be copyrighted,
  • works in the public domain are not protected by copyright,
  • works associated with Creative Commons licenses can be used according to the terms of the license by anyone without getting individual permission, and
  • copyright law is limited by exceptions such as fair use.

You have also practiced determining if a work is in the public domain and thinking about how you will approach making a fair use decision.

Now you can put this information and these skills together to determine when and how you can reuse existing materials in new works that you create. The following outline of steps below are adapted from the Using Existing Works guide developed by University of Minnesota Libraries. View the guide before moving on to an example scenario, and then complete a scenario on your own.

4.2 Can I Use That?

  • Is this work protected by copyright?
    • Use the Copyright Status Tool to help you decide.
    • If NO, then copyright won’t be a concern.
    • If YES, proceed to the next step.
  • Is your intended use already permitted?
    • Is the work associated with a Creative Commons or similar license that allows your use with conditions you can meet?
    • If YES, make your use while ensuring you follow any conditions of the license.
    • If NO, proceed to the next step.
  • Does your use qualify as a Fair Use?
    • Try the heuristic provided in Lesson 3:
      • Is this use likely to result in fewer sales or less financial benefit to the copyright holder?
      • Am I using a larger portion (or higher-quality copy) of the original than I need to?
      • Can I reasonably create my own version of the original that gets across the idea I need to convey without copying it completely?
      • Can I reasonably find an alternative out-of-copyright or already-licensed work that would allow me to accomplish the same thing?
      • Note: If you need more than this shortcut, do a thorough analysis of the four fair use factors using the Using Existing Works guide developed by University of Minnesota Libraries, or contact the UW-Madison Libraries for help.
    • If YES, you are comfortable making a fair use and you can go right ahead. You may want to document your thinking for future reference.
    • If NO, the only way you can use the item in the way you want is with explicit permission. You may also decide to look for an alternative source.

4.3 Sample Scenario

I’m creating a website to encourage people to visit Washington State. I’d like to include this photo of a hummingbird alongside an essay about the beautiful scenery of the area. I found the photo at this page in Flickr.

Can I use it?

  • Is this work protected by copyright?
    • Use the Copyright Status Tool to help you decide.This photo is copyrightable and was created after 2002. I can’t find any evidence that the creator placed it in the public domain, so it is protected by copyright for 70 years after the death of its creator.
    • If NO, then copyright won’t be a concern.
    • If YES, proceed to the next step. YES, so proceed to the next step.
  • Is your intended use already permitted?
    • Is the work associated with a Creative Commons or similar license that allows your use with conditions you can meet? I can’t find any indication that the work is associated with a license.
    • If YES, make your use while ensuring you follow any conditions of the license.
    • If NO, proceed to the next step. NO, so proceed to the next step.
  • Does your use qualify as a Fair Use? Try the heuristic provided in Lesson 3:
    • Is this use likely to result in fewer sales or less financial benefit to the copyright holder?
      It seems like the person who posted this on Flickr isn’t trying to sell it, but I suppose it’s possible they will in the future. At the same time, it seems unlikely that my website will be seen by so many people that it would really cost the copyright holder sales. I think the answer to this question is probably “no.”
    • Am I using a larger portion (or higher quality copy) of the original than I need to?
      I can be careful to use one that’s just a good quality for the web at the size I need. Since the whole point of how I’m using it is to get people’s attention and show how beautiful the scenery is in Washington, I need to use the whole image. Again, I think the answer to this is “no.”
    • Can I reasonably create my own version of the original that gets across the idea I need to convey without copying it completely?
      Since the idea I need to convey is just that Washington State has beautiful scenery, I could really go out and take my own pictures (or arrange for someone to do it for this purpose), so the answer to this one is definitely “yes.”
    • Can I reasonably find an alternative out-of-copyright or already licensed work that would allow me to accomplish the same thing?
      Since any beautiful picture of scenery in Washington would work, I should easily be able to find something associated with a Creative Commons license instead. So the answer to this is also “yes.”

Since I didn’t get clear “no” answers to all our shortcut questions, I’m not really comfortable making a fair use without doing a more thorough analysis or talking with a librarian for help.

Using the Using Existing Works guide developed by University of Minnesota Libraries, here’s an example analysis of the four fair use factors:

Factor 1: Purpose and character of the use: I’m making an educational use and not planning to make money, but it’s really a “Decorative or other non-critical, non-commentary use,” so it seems like Factor 1 somewhat weighs against fair use.

Factor 2: The nature of the original work: There’s some debate about whether or not publicly available Flickr photos are “published,” and, even though the hummingbird and flower exist as facts, the photo itself as arranged with these colors is very creative and artistic, so it seems like Factor 2 also somewhat weighs against fair use.

Factor 3: Amount and substantiality of the portion used: I’ll be using the entire work and “the heart of the work,” but I can use a smaller, lower-resolution version than the original. Still, it seems like Factor 3 somewhat weighs against fair use.

Factor 4: Effect of the use on the potential market for, or value of, the source work: I have access to a legitimately acquired copy and the creator doesn’t seem to be trying to sell copies or licenses, but it’s a long-term use that’s easy for others to redistribute and make additional copies. If the creator decides to sell copies or licenses in the future, my version might be a freely available alternative that could impact the value of the original. So, it seems to me like Factor 4 is neutral.

Given this analysis, it seems like the use I want to make is probably NOT a fair use (consistent with what we found using our heuristic).

I’m not really comfortable making a fair use without more information, so I’m going to ask for permission or see if I can find a Creative Commons licensed hummingbird picture instead.

4.4 Lesson Review: Can I Use It?

Read the following scenario and use the Copyright Status Tool to help you answer the following questions.

Scenario

I’m creating a presentation for a conference. The conference organizers plan to post all the slides on their public website afterwards. My presentation includes an analysis of various methods of teaching children about the structure of atoms. I use three examples of visual models in my analysis and one of them came from a commercial textbook published in the U.S. in 2004. Neither the image nor the book seem to be associated with any type of Creative Commons or similar license. If I don’t include the image of the model that I took from the textbook in my presentation slides, my analysis won’t make sense to my audience. (I’ve also learned that the image was authored by one person who is still living.)

Is this work protected by copyright?

Correct! “This photo is copyrightable, published in the U.S. by more than one author. There’s no reason to think that the creator placed it in the public domain, so it is protected by copyright for 70 years after the death of the author.”
Incorrect. “This photo is copyrightable, published in the U.S. by more than one author. There’s no reason to think that the creator placed it in the public domain, so it is protected by copyright for 70 years after the death of the author.”

If the book was actually published in 1920, not 2004, how does that impact my answer to the question, is this work protected by copyright?

Correct! Copyright protection for this work has expired, even if it was published with a copyright notice and not explicitly dedicated by the author to the public domain.
Incorrect. The answer is C. Copyright protection for this work has expired, even if it was published with a copyright notice and not explicitly dedicated by the author to the public domain.

Is the work associated with a Creative Commons or similar license that allows your use with conditions you can meet?

Correct! I can’t find any indication that the work is associated with a license.
Incorrect. I can’t find any indication that the work is associated with a license.

If the book is actually associated with a Creative Commons license, CC BY-NC, which of the following would need to be true for me to use the image in my slides based on this license?

Correct! The CC BY-NC license grants me permission to use the work this way as long as I cite the original and am using it non-commercially. Only the CC BY-SA and CC BY-NC-SA licenses require me to associate my new work with a similar license.
Incorrect. The answer is B. The CC BY-NC license grants me permission to use the work this way as long as I cite the original and am using it non-commercially. Only the CC BY-SA and CC BY-NC-SA licenses require me to associate my new work with a similar license.

Fair Use heuristic walk-through

  • Is this use likely to result in fewer sales or less financial benefit to the copyright holder?
    • Since the original is just one image from a textbook intended to teach children, I don’t think the conference attendees or people accessing my slides online would be the same people who might buy the textbook, so NO.
  • Am I using a larger portion (or higher quality copy) of the original than I need to?
    • I need to show the colors and the entire image for my audience to understand my analysis, and I won’t use a larger or higher quality version than I need for viewing it in a slide, so NO.
  • Can I reasonably create my own version of the original that gets across the idea I need to convey without copying it completely?
    • My presentation is about actual examples of how this topic is taught and recreating one that included all the information I want to convey is going to be a complete copy, so NO.
  • Can I reasonably find an alternative out-of-copyright or already licensed work that would allow me to accomplish the same thing?
    • This image demonstrates a particular way to teach this topic, different from others, and specifically analyzed in my presentation, so NO.

Given all of these factors, are you comfortable relying on fair use?

Correct! I can answer “no” to all of the shortcut questions, so yes, I am comfortable making a fair use claim.
Incorrect. The answer is Yes: I can answer “no” to all of the shortcut questions, so I am comfortable making a fair use claim.

Which of the following is true?

That’s correct!

The courts use the four fair use factors to make their rulings.

The only way to know a use is definitely fair is to have a court rule on a case about it.

The shortcut questions can identify uses that are probably fair, but won’t identify all uses that are probably fair. If you answer “yes” to one or more of the shortcut questions, you can do a more thorough analysis using the four fair use factors or get help to do that from a librarian.

Incorrect. The answer is A.

The courts use the four fair use factors to make their rulings.

The only way to know a use is definitely fair is to have a court rule on a case about it.

The shortcut questions can identify uses that are probably fair, but won’t identify all uses that are probably fair. If you answer “yes” to one or more of the shortcut questions, you can do a more thorough analysis using the four fair use factors or get help to do that from a librarian.