Through the past three lessons, you have learned:
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.
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.
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.
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.
YES, so proceed to the next step.
I can't find any indication that the work is associated with a license
NO, so proceed to the next step.
Try the heuristic provided in Lesson 3:
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."
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."
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."
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.