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Using Copyrighted Material
Whether you are an author, a professor, or a student, many occasions will arise when you want to use the copyrighted works of others. This page discusses the main issues to consider when using copyrighted material, including how to determine whether a work is copyrighted, understanding fair use, and deciding whether you will need to ask permission for a particular use.
How do I know if the work I want to use is copyrighted?
Copyright protection arises automatically the moment an original work is "fixed in a tangible medium of expression," in other words, the moment that text is written down or typed, or the moment a song is recorded.
A work does not need to be registered, published, or have a copyright notice on it to be protected by copyright. For works created in the US, copyright lasts from the moment a work is created until 70 years after the death of the author, except for works produced by a company/employer in which case the copyright lasts 95 years from the date of publication. Because copyright protection happens so easily, and lasts so long, you should assume that any work you want to use is copyrighted, unless it is very old or produced by the US government.
Copyright has expired for works published in the United States before 1923, which means they are in the public domain. You are free to use or reproduce works in the public domain however you want. In addition, some works published between 1923 and 1963 may also be in the public domain, but this can only be determined on a case-by-case basis. All works created after 1963 are under copyright, except for work produced by the US government, and state constitutions and laws. If you are trying to determine whether a work published during that time period is still under copyright, the Stanford Copyright Renewal Database is a good place to start.
What is fair use?
Fair use allows limited use of copyrighted material without permission from the copyright holder for purposes such as criticism, parody, news reporting, research and scholarship, and teaching. There are four factors to consider when determining whether your use is a fair one. You must consider all the factors below, even though all the factors do not have to be in favor of a use to make it a fair one.
The four fair use factors are as follows:
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, such as whether the work is fiction or non-fiction, published or unpublished;
The amount of the work used in relation to the copyrighted work as a whole, such as using a poem in its entirety, or using one chapter from a long book;
The effect of the use upon the potential market for the copyrighted work.
For assistance in analyzing these factors for individual cases, see Columbia University's Fair Use Checklist.
Just because your use is for non-profit educational purposes does not automatically give you permission to copy and distribute other people's work. While many educational uses may be fair, you will probably need to evaluate your use each time you are reproducing copyrighted material — to show in your class, to hand out copies, or to include in your writing.
How do I know if I am allowed to use a work in my classroom?
The rules governing use of materials in a face-to-face classroom are broader than fair use, and those rules give you more leeway as far as what you are allowed to copy, display, and distribute in your classes. You may display or perform a work in your class without obtaining permission or doing a fair use evaluation when your use meets all three of these criteria:
The use is
for instructional purposes;
in face-to-face teaching;
at a nonprofit educational institution.
Uses you are allowed to make include
showing all or part of a movie or television show;
including pictures, images, graphs, and charts in your lecture slides;
playing music.
How do I know if I am allowed to include a work in my writing?
One goal of fair use is to allow the inclusion of quotations and excerpts in scholarly works without seeking permission. Some people believe that there are hard and fast numbers to determine how much of a work you may legally use – no more than X lines of a song, or no more than Y words of a text – but that is not the case. Every use is different, and must be considered individually.
If you are writing a book or article for publication, your publisher may want you to get permission for the use of all copyrighted material, even uses that you may think are fair. Because every publisher has its own policy on what it considers to be legally safe, it would be impractical for you to try to clear rights before you receive an offer for publication. However, you should be aware that you may be responsible for clearing permissions for publication and that there may be a cost associated with acquiring those rights.
Writing for personal or classroom use
If you are writing a paper for a class and you have no intention of publishing it, you have much broader leeway as far as what you can use. Remember, however, that fair use is a concept in copyright law, and that it does not alter your academic obligation to provide proper citation for works that you use. Copyright infringement and plagiarism are two different things – see the Student Handbook if you have any questions about plagiarism.
How do I know if I am allowed to use a work in my conference presentation?
The same fair use provisions that protect the use of quotations and excerpts in scholarly writing also protect those uses in scholarly presentations. You may be able to include copyrighted text, images, or videos in your presentation slides.
However, if the conference organizers plan to use your presentation after it is over – for example, if video of your presentation is posted on the conference website, or if the slides are made freely available for download – your ability to include copyrighted work may be more limited. You can generally show more than you can share, and you should clarify these issues in advance so that you have time to clear rights for the copyrighted material in your presentation, create a second version for distribution that does not include the copyrighted material, or choose alternative material that you are free to use.
How do I know if I am allowed to use a work in a distance learning class?
The Technology, Education, and Copyright Harmonization Act (TEACH Act) says that teachers and students at accredited educational institutions can use works for distance learning without permission under certain circumstances.
If you:
are an educator at an accredited educational institution;
will supervise your students' use of copyrighted materials;
are using the material as an integral part of a class session;
are using the material as an integral part of your curriculum; and
are using the material that is directly related to and of material assistance to your teaching content;
and you plan to use copyrighted works in the following ways:
performances of nondramatic literary works (e.g., a recording of a novel being read aloud);
performances of nondramatic musical works (e.g., a recording of a symphony);
performances of reasonable amounts of any work (e.g., an excerpt from a movie); or
display of any work in an amount comparable to what would be used in a live classroom.
then your use aligns with the Teach Act. For more help, see the TEACH Act checklist.
What if I got the work from a website?
Works residing on a site that makes no mention of copyright should be presumed to be copyrighted; just because something is freely available on a website does not mean it is in the public domain. If a work is published online with a statement that it is in the public domain, you will have to judge whether or not these claims are trustworthy, keeping in mind that such claims will not protect you should a copyright holder object to your use.
You may encounter works online for which the author or creator specifically grants rights to use them, such as those released under a Creative Commons license. A Creative Commons license allows you to make certain uses of a work without asking for permission, provided you follow the terms set by the creator.
What if I created the work?
Unless you created the work as part of your job as an employee or under contract as a work for hire, you are the author and the initial copyright holder. However, if you have transferred your copyright to someone else, such as a journal publisher, you are no longer the copyright holder and may not have any privileges to use the work. If you are not sure, you should consult your publishing agreement to see if you have retained any rights.
If you have not retained rights to use your work, then you must treat it like any other copyrighted work — decide whether the use you want to make is a fair use, and if it isn't, then ask for permission.
What if a student created the work?
Students hold the copyright to the academic works they create, such as their papers, projects, theses, and dissertations. There are also privacy concerns related to the use of student work. If you wish to use student work, ask for permission.
What if the work was published outside the US?
There are differences in copyright law across countries. The Berne Convention, signed by 163 countries, requires that countries recognize the works of foreign authors the same way they do those of their own nationals. For example, all works performed or published in the US, are subject to the terms of US copyright law, no matter where they were created originally. Most countries have standardized their copyright terms, so foreign copyrights tend to last as long as US copyrights: the life of the author plus 70 years. When determining whether or not you can make a particular use of a foreign work, you will need to consider the specific circumstances of your case, such as the country where the work originated, whether or not the work is in print, and how you plan to use the work.
What does it mean if a work is Creative Commons licensed?
Creative Commons is a non-profit organization that created a set of simple, easy-to-understand copyright licenses. These licenses allow creators to mark a work with permission to make a variety of uses, with the aim of expanding the range of things available for others to quote, adapt, and build upon. Creative Commons licenses do two things: They allow creators to share their work easily, and they allow everyone to find work that is free to use without permission. As long as you obey the terms of the license attached to the work, you can use Creative Commons licensed material without fear of accidentally infringing on someone's copyright.
For more information, visit the Creative Commons website.
What can I do if the use I want to make is not a fair use?
If you have determined that the use you want to make is not a fair use, you must ask for permission from the copyright holder. See the section on requesting permission to use copyrighted material for more information and sample request letters.
This document was adapted from the University of Michigan's Copyright at the University of Michigan, which was released under a Creative Commons Attribution-Non-Commercial 3.0 license.
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