Using copyrighted content
Fair Use Week 2018: February 26-March 2
Save the dates!
The Libraries are hosting two events this year:
- February 27, 3-4 pm, 3-133: We’re partnering with copyright guru Kyle Courtney from Harvard’s Office for Scholarly Communication & staff from MIT’s Office of Digital Learning to run a Fair Use Week game show. Stay tuned for more information.
- February 28, 10 am – 3 pm, Lobby 10: We’re hosting a table where we’ll chat about fair use & give away handy fair use kaleidocycles that you can make at the table or take home. (See how it works here, or download the template) We’ll have scissors and glue, and will be on hand to help you think through the four fair use factors.
Copyright is a bundle of rights that includes copying, adapting, or sharing someone else’s work. You need permission from the copyright owner to do any of these things, unless fair use or another exception applies.
Copyright exists as soon as an original work is fixed in a tangible medium (so, written down, saved to a computer drive, recorded, etc.), but some content is not covered by copyright and can be used freely. This includes:
- Works in the public domain due to copyright expiration, see this chart for copyright expiration in the United States. In the US, works published before 1923 are generally public domain.
- Works created by the US federal government, which are in the public domain by statute.
- Works that have been dedicated into the public domain by their creator, for example by using CC0.
- Copyright does not cover ideas and facts, only their creative expression. While the threshold for originality is low, if you are only copying factual or conceptual information (for example, raw data from a telephone directory), copyright may not apply.
- The MIT Libraries have agreements with many major scientific publishers, including Elsevier, Sage, SpringerNature, Taylor & Francis, and Wiley, that allow MIT authors to reuse figures without asking permission or paying any fee. Find more information here.
- The MIT Libraries have licensed certain image resources for use at MIT (not necessarily shareable beyond MIT), see http://libguides.mit.edu/findingimages. Be sure to check the rules of use at these sites. Examples include: ARTstor and Credo Reference.
- Look for openly licensed images:
- Search Creative Commons-licensed images here or here
- Use Google Advanced Image Search and look for “usage rights” limit – filter by “free to use or share”
- Search Open-i for open access biomedical images
- Look for public domain images using Wikipedia’s public domain image resources list
The fair use provisions of U.S. copyright law allow use of copyrighted materials for specific purposes without permission of the copyright holder. The law as written is brief and general. Fair use is flexible, which means it can adapt to new situations, but also that there are no black and white rules. In order to assess fair use, courts apply a holistic assessment of four factors:
- The purpose and character of your use
- Nonprofit, educational, scholarly or research use favors fair use
- Transformative use (repurposing, recontextualizing, using the work for a new purpose) favors fair use
- The nature of the copyrighted work you are using
- Using published, fact-based content favors fair use
- The amount of the work you are using
- Small or less significant amounts favor fair use
- Using only the amount needed for a given purpose favors fair use
- The effect of your use on the market for or value of the copyrighted work
- If there would be no effect, or it is not possible to obtain permission to use the work, this favors fair use
Applying this four-factor test is not a clear-cut process, and each individual needs to weigh all four factors to decide whether a fair use exemption will apply to a proposed reuse.
Simplifying questions for fair use
In most academic uses, two questions are most relevant for a fair use analysis:
- Does the use transform the material, by using it for a different purpose?
- Was the amount taken appropriate to the new purpose? (Did you only take the amount you needed for your purpose?)
If you can answer a clear ‘yes’ to both questions, you generally should have a strong fair use case.
How to improve a fair use case for an image
Suggestions for improving your fair use case:
- Place the image in a new context or use it for a new purpose
- Use lower resolution or thumbnail versions where possible
- Use only the parts of the image needed for the purpose
If fair use or another copyright exception does not apply to a copyrightable work, you will generally need to get permission.
- For a general guide of the permissions process, go to this Stanford University Libraries page.
- You may be able to pay a fee to the rights holder in order to use material; for a portion of a book or article, an efficient place to begin is the Copyright Clearance Center, a commercial service.
- For reuse of content from formats other than a book or article (e.g. music or film) consult this University of Texas guide.
- Read captions and collection descriptions
Also be aware of additional laws that may apply to photographs of people. Rights of privacy or publicity limit the use of a person’s likeness. To avoid potential problems:
- Use photographs of people taken in larger public scenes, and avoid photographs of famous people, or people engaging in private activities
Most databases and electronic journals are available at MIT under the terms of license agreements, which determine how each electronic journal or database can be used.
License terms generally override copyright law where they differ, which means you may not be able to rely on fair use if you want to use these materials. Information on license terms for specific products can be found in Vera. Click the orange button associated with a title, if present, and find a description at the top of the search results screen.
- Linking to a database or an e-journal from a course page is generally allowed, and is the recommended method for providing online information content.
- to an open access environment: prohibited.
- to an access-controlled environment: may or may not be allowed.
- Contact firstname.lastname@example.org to determine whether the e-journal or database from which you wish to post content allows it.
Citing your source is critical to avoid plagiarism (using someone else’s work without giving them credit), which is a serious form of academic dishonesty. Plagiarism is considered a serious offense and is handled by university processes. See more about citing here.
Citing your source, however, is not enough to protect you from the legal issue of copyright infringement.
Citations can be formatted according to the citation style you are using (e.g. MLA, APA, Chicago Manual of Style).
Include as much of the following in your citation as can be easily determined from the source:
- creator’s name (e.g. the photographer)
- title of the work
- location of the work (museum, library or owning institution if known)
- date work was created
- copyright owner, if known (please note, this may not be the original creator)
- source – where you found the image
- Questions? Contact us: email@example.com
- Try our self-teaching fair use web-based quiz
- See our podcasts & videos on copyright & fair use
- See our YouTube channel with talks on fair use
- A helpful Fair Use Analysis Tool from the University of Minnesota provides a structure for reviewing all four fair use factors for your proposed use
- See examples of how fair use is applied to various kinds of materials and situations here: University of Texas’s Fair Use information
- MIT Libraries guide on copyright and using images
- Stanford Fair Use Center
- Read the US copyright law
- Visit the US Copyright Office fair use index, a searchable database of fair use cases