Copyright and Online Images: Fair Use

Section 107 of the U.S. Copyright Law states that "the fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."

17 U.S. Code § 107

The Fair Use Analysis Checklist from Kenneth Crews (Columbia Univeristy Libraries) guides faculty, staff and students through the decisions needed to determine if a use of a copyright-protected work qualifies as fair use.

Providing persistent links or URLs to electronic journal articles in Blackboard course pages instead of creating a PDF or photocopy of the article for your students avoids copyright violations. Persistent links are stable and enable access for authorized users who are off campus. See Miner's How Do I Create Persistent Links for step-by-step instructions.

Simple, concise rules do not exist in the law of fair use. Instead a determination of fair use depends on a balancing of the four factors outlined in Section 107.

1.   The purpose and character of the use.

Transformative uses such as criticism or parody and nonprofit uses for teaching, scholarly work or research tip the balance in favor of fair use. Commercial use favors seeking permission from the copyright owner.

2.   The nature of the copyrighted work.

Use of factual works tends to tip the balance in favor of fair use. Use of highly imaginative and creative works such as poetry, images, plays and fiction favors seeking permission.

3.   The amount of the work being used.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole must be considered. Using a limited portion of a work and only the amount required to achieve the stated purpose favors fair use. Using an entire work (i.e an entire journal issue or most of the images in a book) or the "heart" of the work (the portion considered most central to the work as a whole) tips the balance against fair use.

4.   The effect of the use on the market for the original work.

Reproduction that substitutes for purchase of the original work weighs heavily against fair use. Likewise use of consumable works such as study guides or works that can be easily purchased or licensed weighs against fair use. Situations in which a work is out of print or otherwise unavailable, or when the copyright owner cannot be located tip the balance towards fair use.

Miner Library will place materials on course reserves in accordance with the fair use guidelines and this policy.  Faculty members, instructors or other authorized personnel should carefully review any copyrighted material to be used and determine whether they need to seek permission from the copyright owner. Materials will not be put on course reserves without the copyright owner’s permission unless the fair use factors are met, or unless some other legal exception to the permission requirement applies.

The following rules also apply:

• All use of materials placed on reserves will be at the initiative of faculty solely for the non-commercial, educational use of students.
• Materials to be copied or scanned for electronic reserves will be in the legal possession of the library or the faculty member (by purchase, license, fair use, etc.) or some other unit of the University.
• There will be no charge for access. The charge for copies made by students will be limited to the nominal cost of photocopies or laser prints.
• Any copyright notice on the original material must be included in the material copied or scanned. Appropriate citations and attributions to source must also be included.
• When possible links to sites where material already is legally available (e.g., journal website) will be used instead of scanning or making a digital copy.
• Instructor and student access to the electronic files ceases at the end of the course period.