Skip to Main Content

Copyright Crash Course

What is fair use?

Fair use is the use of copyrighted works without asking permission from the copyright owner(s). What that looks like in practice varies and depends on an analysis of four different factors:

  • purpose and character of the use
  • nature of the work
  • amount used
  • effect upon the market

Best Practices:

  • Unfortunately there is no equation that will identify if your use is considered fair. In order to determine fair use, you need to weigh the four factors listed above and make a determination for that specific copyrighted material. 
  • The Center for Media and Social Impact at American University has sponsored the development of fair use best practice statements. These follow recent trends in court decisions and consolidate the four factors into two questions: 
    • Is the use you want to make of another's work transformative - that is, does it add value to and repurpose the work for a new audience - and is the amount of material you want to use appropriate to achieve your transformative purpose?
    • Transformative uses that repurpose no more of a work than is needed to make the point, or achieve the purpose, are generally fair use. 
    • In this case, we look at whether the copyright owner makes licenses available on the open market. If they do not, this lack of license we need to use the materials supports our relying on fair use because the market has failed to meet our needs. To learn more about this, checkout the Georgia State Case.  

Use this infographic to help visualize fair use:

You may not need to worry about copyright and fair use at all! Many works are not protected by copyright, or are already licensed to you or your institution for the uses you wish to make. 

Unprotected Works/Public Domain

Copyright does not protect, and anyone may freely use:

See the Public Domain guide for more information about unprotected works.

The presence or absence of a copyright notice no longer carries the significance it once did because the law no longer requires a notice. Older works published without a notice may be in the public domain, but for works created after March 1, 1989, absence of a notice means virtually nothing.

Peter Hirtle from Cornell University, created an excellent resource about copyright terms that explains the rules for determining whether a protected work is in the public domain. These rules are complex and somewhat hard to describe, partly because they changed many times during the 20th century. At their most basic, excluding anonymous works and works for hire, the rules can be summarized as follows:

  • Any work published on or before December 31, 1926 is now in the public domain
  • Works published between January 1, 1927 and December 31, 1978, inclusive, are protected for a term of 95 year from the date of publication, with the proper notice
    • But, if the work was published between 1927 and December 31, 1963, when there was a non-automatic "renewal term", the copyright owner may not have renewed the work. If he or she did not renew, the original term of protection (28 years) will have expired and these work will be in the public domain. 
  • After 1978, the way we measure the term of protection changes. It no longer begins on the date of publication, rather it run for 70 years from the date the author dies (called life of the author plus 70 years). Further, publication is irrelevant. Works are protected whether they are published or not.
  • Finally, those works that were created before December 31, 1978, but never published, are now protected for the life of the author plus 70 years.

Library-licensed works

Check your library's databases and catalogs. They may already have just what you need. You can also ask whether your institution has an institutional license with the Copyright Clearance Center.

Creative Commons licensed works

Learn to do effective searches for Creative Commons licensed materials. You may find exactly what you need with the rights you need to use it, available online for free. See the Creative Commons guide for more information.

Implied licenses

All of us who place materials on the open web do so knowing that people will use our works in certain ways (downloading, making personal copies, sending copies to friends, etc.). This is the essence of an implied license. I put my materials out there and even though I don't "expressly" give you the right to do these things, the law assumes that I must have intended to give you the right to do what a reasonable copyright owner would expect the public to do. Most nonprofit, educational uses would likely be within the scope of what people expect when they place materials on the open web. The scope of this license might be the same as or different from fair use, but it's good to know that we have both. Providing attribution should become automatic for you, whenever you use others' works.

Fair Use Exemption:

As mentioned in the introduction, Courts tend to collapse the four fair use factors into two questions:

  1. Is the use you want to make of another's work transformative -- that is, does it add value to and repurpose the work for a new audience?
  2. Is the amount of material you want to use appropriate to achieve your transformative purpose?

If a use is not transformative, or if the amount you want to use goes beyond what you need to make your point, look at market availability for a license. We can start with a few quick suggestions regarding the types of uses that we most commonly make of others' work on campus. Then, we can look more closely at the fair use statute's four factors to see how they can help you for more difficult cases.

  • Coursepacks, reserves, learning management systems and other platforms for distributing course content
  • Image, audio and audiovisual archives
  • Creative uses
  • Research copies

Online Distribution of Content: 

For transformative uses, use no more than you need to achieve your transformative purpose.

If you need to use materials in essentially the same way or for the same audience as the author intended, or you use more than necessary to achieve a transformative purpose, limit materials distributed in coursepacks, through reserves, learning management systems and iTunes U by:​

  • Using small amounts of the total
  • Use copies of materials that a faculty member or the library already possesses legally (i.e., by purchase, license, fair use, interlibrary loan, etc.)
  • Limit access to the appropriate groups, such as students enrolled in a class and administrative staff, as needed
  • Terminate access at the end of the class term when appropriate

Always include

  • Any copyright notice on the original
  • Appropriate citations and attributions to the source
  • A Section 108(f)(1) notice, because these materials are distributed most often through digital media

Digitizing for educational purposes:

If the use of the resources is transformative and the amount used is appropriate for the transformative purpose, digitize them and make them available as needed, in accordance with the limitations below. In some cases where a use is transformative and the institution's materials are unique, fair use will support digitizing them and providing public access. But in other cases, digitized materials should be made available in accordance with the limitations below.

If the use is not transformative, for example, in the case of analog slide sets produced and marketed for an educational audience, assess the scope and relevance of licensed digital resources available to meet educator's needs.

  • If your needs and the content of licensed digital resources significantly overlap: Acquire licenses to use the commercially available digital collections and digitize institutional holdings in accordance with the limitations below.
  • If there is little overlap in your needs and readily available digital collections, for example, if your materials are no longer available or are rare: Digitize and use institutional works in accordance with the limitations below.

Limit access to all images, audio and audiovisual resources, except low resolution small images or short clips, to appropriate audiences such as students enrolled in a class and administrative staff as needed. Terminate access at the end of the class term when appropriate.

Faculty members also may use these works at peer conferences.

Students may download, print when needed, and transmit digitized works for personal study and for use in the preparation of academic course assignments and other requirements for degrees, may publicly display images and perform audio and audiovisual works in works prepared for course assignments etc., and may keep works containing them in their portfolios.

Digitizing and using other's works creatively

Students, faculty and staff who wish to use others' works in creative, transformative ways, may incorporate others' works into their own original creations and display and perform the resulting work in connection with or creation of:

  • Class assignments
  • Curriculum materials
  • Remote instruction
  • Examinations
  • Student portfolios
  • Professional symposia

While creative uses tend to be transformative, we still must be careful to use no more than needed to achieve the transformative purpose.

Limit copies and distribution.

Fair use lets you use parts of a copyrighted work without first obtaining permission from the copyright holder. It is determined by weighing the four factors: the purpose of your use, the type of material, how much you’re using, and the effect your use has on the market for the original.

There’s no equation you can use to determine fair use. Rather, you have to consider if the factors favoring fair use significantly outweigh the factors against. If you find they do, then your use is probably justified. If not, you should get permission from the copyright holder before use. Please contact LITS at libref @ beloit.edu if you need assistance determining fair use or finding a copyright holder.

Download the PDF below for the checklist. 

Fair Use Resources