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Digital Media Toolbox: Copyright and Fair Use

This guide contains information for creating born-digital media projects, resources for finding and using media, and copyright.

Why is this important?

It's important to cite sources you used in your research for several reasons:

  • To show your audience you've done proper research by listing sources you used to get your information
  • To be a responsible scholar by giving credit to other researchers and acknowledging their ideas
  • To avoid plagiarism by quoting words and ideas used by other authors
  • To allow your audience to track down the sources you used by citing them accurately in your paper by way of footnotes, a bibliography, or reference list

Adapted from MIT Libraries, used with permission under CC BY-NC 2.0

Copyright, Fair Use, Creative Commons, and Public Domain

Copyright protection begins the moment a work is, "fixed in any tangible medium of expression." This means that as soon as something is created the creator owns the copyright. The owner has exclusive rights to share and profit from the work, and to create derivative works based on the original.

Fair use is, "a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances." There are four factors which must be taken into account when determining if a use of a work falls under fair use. More information about this may be seen on the right.

Creative Commons (CC) licenses enable the owner of a work to allow another party to re-use, adapt, and re-create with their work.  Different types of CC licenses allow for different levels of re-use.  Regardless of the type of CC license you should always cite and/or attribute the work you use to the original creator. This link describes each type of license and what sort of attribution must be made to re-use the material.

 

The Four Factors of Fair Use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. 

The Four Factors
All of these factors must be taken into account in order to determine if a use of a work falls under fair use.

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:  Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.  This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.  Additionally, “transformative” uses are more likely to be considered fair.  Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
  • Nature of the copyrighted work:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
  • Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.