Lesson 4: Putting It All Together

Copyright & Fair Use

4.1 Putting It All Together

Through the past three lessons, you have learned:

  • use of other people's creative works may be limited by copyright protection,
  • facts and ideas cannot be copyrighted,
  • works in the public domain are not protected by copyright,
  • works associated with Creative Commons licenses can be used according to the terms of the license by anyone without getting individual permission, and
  • copyright law is limited by exceptions such as fair use.

You have also practiced determining if a work is in the public domain and thinking about how you will approach making a fair use decision.

Now you can put this information and these skills together to determine when and how you can reuse existing materials in new works that you create. The following outline of steps below are adapted from the Can I Use That? guide developed by University of Minnesota Libraries. View the guide below before moving on to an example scenario and then completing a scenario on your own. You can also open the guide in a new tab or download it for future use.


4.2 Can I Use That?

  • Is this work protected by copyright?
    • Use the Copyright Status Tool to help you decide.
    • If NO, then copyright won't be a concern.
    • If YES, proceed to the next step.
  • Is your intended use already permitted?
    • Is the work associated with a Creative Commons or similar license that allows your use with conditions you can meet?
    • If YES, make your use while ensuring you follow any conditions of the license.
    • If NO, proceed to the next step.
  • Does your use qualify as a Fair Use?
    • Try the heuristic provided in Lesson 3
      • Is this use likely to result in fewer sales or less financial benefit to the copyright holder?
      • Am I using a larger portion (or higher quality copy) of the original than I need to?
      • Can I reasonably create my own version of the original that gets across the idea I need to convey without copying it completely?
      • Can I reasonably find an alternative out-of-copyright or already licensed work that would allow me to accomplish the same thing?

      If you need more than this shortcut, do a thorough analysis of the four fair use factors using the Thinking Through Fair Use tool from the University of Minnesota Libraries -- or contact the libraries for help.

    • If YES, you are comfortable making a fair use and you can go right ahead. You may want to document your thinking for future reference.
    • If NO, the only way you can use the item in the way you want is with explicit permission. You may also decide to look for an alternative source.

    4.3 Sample Scenario

    I'm creating a website to encourage people to visit Washington State. I'd like to include this photo of a hummingbird alongside an essay about the beautiful scenery of the area. I found the photo at this page in Flickr.

    Humminbird Photo from Flickr

    Can I use it?

    • Is this work protected by copyright?
      • Use the Copyright Status Tool to help you decide.

        This photo is copyrightable and was created after 2002. I can't find any evidence that the creator placed it in the public domain, so it is protected by copyright for 70 years after the death of its creator.

      • If NO, then copyright won't be a concern.
      • If YES, proceed to the next step.

        YES, so proceed to the next step.

    • Is your intended use already permitted?
      • Is the work associated with a Creative Commons or similar license that allows your use with conditions you can meet?

        I can't find any indication that the work is associated with a license

      • If YES, make your use while ensuring you follow any conditions of the license.
      • If NO, proceed to the next step.

        NO, so proceed to the next step.

    • Does your use qualify as a Fair Use?

      Try the heuristic provided in Lesson 3:

      • Is this use likely to result in fewer sales or less financial benefit to the copyright holder?
      • It seems like the person who posted this on Flickr isn't trying to sell it, but I suppose it's possible they will in the future. At the same time, it seems unlikely that my website will be seen by so many people that it would really cost the copyright holder sales. I think the answer to this question is probably "no."

      • Am I using a larger portion (or higher quality copy) of the original than I need to?
      • I can be careful to use one that's just a good quality for the web at the size I need. Since the whole point of how I'm using it is to get people's attention and show how beautiful the scenery is in Washington, I need to use the whole image. Again, I think the answer to this is "no."

      • Can I reasonably create my own version of the original that gets across the idea I need to convey without copying it completely?
      • Since the idea I need to convey is just that Washington State has beautiful scenery, I could really go out and take my own pictures (or arrange for someone to do it for this purpose), so the answer to this one is definitely "yes."

      • Can I reasonably find an alternative out-of-copyright or already licensed work that would allow me to accomplish the same thing?
      • Since any beautiful picture of scenery in Washington would work, I should easily be able to find something associated with a Creative Commons license instead. So the answer to this is also "yes."

    Since I didn't get clear "no" answers to all our shortcut questions, I'm not really comfortable making a fair use without doing a more thorough analysis or talking with a librarian for help.

    Using the Thinking Through Fair Use tool from the University of Minnesota Libraries here's an example analysis of the Four Fair Use Factors.

    Factor 1: Purpose and character of the use: I'm making an educational use and not planning to make money, but it's really a "Decorative or other non-critical, non-commentary use" so it seems like Factor 1 somewhat weighs against fair use.

    Factor 2: The nature of the copyrighted work: There's some debate about whether or not publicly available Flickr photos are "published," and, even though the hummingbird and flower exist as facts, the photo itself as arranged with these colors is very creative and artistic, so it seems like Factor 2 also somewhat weighs against fair use.

    Factor 3: Amount and substantiality of the portion used: I'll be using the entire work and "the heart of the work," but I can use a smaller, lower-resolution version than the original. Still, it seeems like Factor 3 somewhat weighs against fair use.

    Factor 4: Effect on the potential market for or value of the work: I have access to a legitimately acquired copy and the creator doesn't seem to be trying to sell copies or licenses, but it's a long-term use that's easy for others to redistribute and make additional copies, and if the creator decides to sell copies or licenses in the future, my version might be a freely available alternative that could impact the value of the original. So, it seems to me like Factor 4 is neutral.

    Given this analysis, it seems like the use I want to make is probably NOT a fair use (consistent with what we found using our heuristic).

    I'm not really comfortable making a fair use without more information, so I'm going to ask for permission or see if I can find a Creative Commons licensed hummingbird picture instead.


    4.4 Scenario Activity

    Read through the following scenario and answer the multiple choice questions along the way.

    I'm creating a presentation for a conference. The conference organizers plan to post all the slides on their public website afterwards. My presentation includes an analysis of various methods of teaching children about the structure of atoms. I use three examples of visual models in my analysis and one of them came from a commercial textbook published in the U.S. in 2004. Neither the image or the book seem to be associated with any type of Creative Commons or similar license. If I don't include the image of the model that I took from the textbook in my presentation slides, my analysis won't make sense to my audience. (I've also learned that the image was authored by one person who is still living.)

    Can I use it?

    • Is this work protected by copyright? Use the Copyright Status Tool to help you decide.
    • "This photo is copyrightable, published in the U.S. by more than one author. There's no reason to think that the creator placed it in the public domain, so it is protected by copyright for 70 years after the death of the author."

    • If NO, then copyright won't be a concern.
    • If YES, proceed to the next step.
    • "YES, so proceed to the next step."

    It turns out I was reading the publication date wrong. The book was actually published in 1920. How does that impact my answer to the question, is this work protected by copyright?

    A. It doesn't make a difference as long as the book was published in the U.S. with a copyright notice.

    B. As long as the author hasn't explicitly dedicated the book to the public domain, the work is protected by copyright.

    C. The work would not be protected by copyright because copyright protection has expired for all works published in the U.S. before 1923.

    D. Both A and B.

    The correct answer is C. The work would not be protected by copyright because copyright protection has expired for all works published in the U.S. before 1923.

    Copyright protection has expired for all works published in the U.S. before 1923, even works that were published with a copyright notice and not explicitly dedicated by the author to the public domain.

    Is your intended use already permitted?

    • Is the work associated with a Creative Commons or similar license that allows your use with conditions you can meet?
    • "I can't find any indication that the work is associated with a license."

    • If YES, make your use while ensuring you follow any conditions of the license.
    • If NO, proceed to the next step.
    • "NO, so proceed to the next step."

    I found out the book is actually associated with a Creative Commons license, CC BY-NC. Which of the following would need to be true for me to use the image in my slides based on this license?

    A. I would have to associate my slides with a CC BY-NC license too.

    B. I would have to appropriately cite the original and couldn't be using my slides primarily to make money.

    C. The work would need to be in the public domain or not copyrightable.

    D. Both A and B.

    The correct answer is B. I would have to appropriately cite the original and couldn't be using my slides primarily to make money.

    The CC BY-NC license grants me permission to use the work this way as long as I cite the original and am using it non-commercially. Only the CC BY-SA and CC BY-NC-SA licenses require me to associate my new work with a similar license.

    Does your use qualify as a Fair Use?

    • Is this use likely to result in fewer sales or less financial benefit to the copyright holder?
    • "Since the original is just one image from a textbook intended to teach children, I don't think the conference attendees or people accessing my slides online would be the same people who might buy the textbook, so NO."

    • Am I using a larger portion (or higher quality copy) of the original than I need to?
    • "I need to show the colors and the entire image for my audience to understand my analysis, and I won't use a larger or higher quality version than I need for viewing it in a slide, so NO."

    • Can I reasonably create my own version of the original that gets across the idea I need to convey without copying it completely?
    • "My presentation is about actual examples of how this topic is taught and recreating one that included all the information I want to convey is going to be a complete copy, so NO."

    • Can I reasonably find an alternative out-of-copyright or already licensed work that would allow me to accomplish the same thing?
    • "This image demonstrates a particular way to teach this topic, different from others, and specifically analyzed in my presentation, so NO."

      (If you need more than our shortcut because you answer yes to some of these questions, do a thorough analysis of the four fair use factors using the Thinking Through Fair Use tool from the University of Minnesota Libraries -- or contact the libraries for help.)

    • If YES, you are comfortable making a fair use and you can go right ahead. You may want to document your thinking for future reference.
    • If NO, the only way you can use the item in the way you want is with explicit permission.
    • "I can answer 'NO' to all of the shortcut questions, so YES, I am comfortable making a fair use."

    Which of the following is true?

    A. Being able to answer "no" to all the shortcut questions means someone implementing a complete analysis using the four fair use factors included in copyright law and with a good understanding of how courts have ruled on fair use cases in the past would probably conclude that my use is fair.

    B. Federal courts use these shortcut questions when making a ruling about whether or not a use is fair.

    C. Being able to answer "no" to all the shortcut questions means my use is definitely fair.

    D. If the answer to one of the shortcut questions is "yes," my use is probably not fair.

    The correct answer is A. Being able to answer "no" to all the shortcut questions means someone implementing a complete analysis using the four fair use factors included in copyright law and with a good understanding of how courts have ruled on fair use cases in the past would probably conclude that my use is fair.

    The courts use the four fair use factors to make their rulings.

    The only way to know a use is definitely fair is to have a court rule on a case about it.

    The shortcut questions can identify uses that are probably fair, but won't identify all uses that are probably fair. If you answer "yes" to one or more of the shortcut questions, you can do a more thorough analysis using the four fair use factors or get help to do that from a librarian.