Copyright: What Are My Options?

Copyright terms have steadily lengthened under U.S. law, but they don't last forever. Once the applicable copyright term has expired, a work passes into the “public domain” and may be freely used by anyone for any purpose. One way to comply with copyright law is to use resources that are no longer protected by it -- or resources created by people who want to openly share their work.

What is currently in the public domain?

1. Any work that was first published before 1923 in the U.S.

2. Any work created by federal officers or employees as part of their official duties (such as presidential speeches, congressional reports, and federal judicial opinions).

3. Any work licensed by its creator under Creative Commons License CC0 ("No Rights Reserved"). You may also consider using other openly licensed works with "some rights reserved," but you must comply with the usage restrictions specified by the work's license.

The fair use doctrine is recognized under U.S. copyright law and allows certain uses of copyright protected material without first obtaining permission from the copyright holder. It is intended to serve the public good by allowing use of copyright protected materials for comedy, parody, news reporting, research and education. However, it is important to remember that not every use in an academic setting is automatically considered a fair use.

The following factors must be considered and weighed to determine whether fair use applies:

1. What is the character or purpose of the use? If the use is for a nonprofit educational use as opposed to a commercial purpose, it is more likely to be considered fair use.
2. What is the nature of the work to be used? If it is a fact based work developed for research or scholarly use as opposed to a creative work created for commercial purposes, it is more likely to be considered fair use.
3. How much of the work will be used? The amount and substantiality of the portion used in relation to the copyrighted work as a whole must be considered. This refers to both the amount, length, and duration of the use.  The smaller the amount used, the more likely it favors fair use.
4. What effect would the use have on the market for or the value of the copyrighted work? In order to favor fair use, the use should have little or no effect on the creator’s ability to make money from the work.

A thoughtful analysis of these factors in relation to the desired use is required to make a “good faith” determination of fair use. There are significant penalties that can be imposed for copyright infringement. However, liability may be reduced in cases of nonprofit educational use if you can establish that an evaluation of these four factors resulted in a reasonable belief that the use was fair. Use the checklist below to document your analysis of every fair use determination before using copyrighted materials.

If fair use does not apply and there are no other applicable exceptions under copyright law, the only way to use the copyrighted work without potentially incurring legal liability is to obtain the permission of the copyright owner. The owner is not always easy to determine and is frequently the publisher rather than the author/artist/creator. Once you have identified the copyright owner, send a letter requesting permission to use the work (see sample below). If you do not know the identity of the owner, it is often best to begin with the publisher of the work. Publishers, authors and artists are often, but not always, generous in granting permission to use their work in an educational context.