Copyright Clearance

Thousands of cases, and many, many books and articles have attempted to analyze fair use in order to define specific examples.

Understanding the scope of fair use and becoming familiar with those situations where it applies and those where it does not can help protect you and your organization from unauthorized use of copyright materials, however, many individuals do not want this responsibility. Corporate Copyright Policies (link to section) often provide guidelines for determining whether a use may be considered fair use. Frequently, a complete risk analysis is required. Most organizations prefer to follow the motto "when in doubt, obtain permission."

Examples of Fair Use include:

  • Reproduction of material for classroom use where the reproduction was unexpected and spontaneous-for example, where an article in the morning's paper is directly relevant to that day's class topic.
  • Quotation of excerpts in a review or criticism for purposes of illustration or comment.
  • A summary of an address or article, which may include quotations of short passages of the copyrighted work.
  • Quotation of short passages in a scholarly or technical work for illustration or clarification of the author's observations.
  • Use in a parody of short portions of the work itself.
While the factors above are helpful guides, they do not clearly identify uses that are or are not fair use. Fair use is not a straightforward concept, therefore the fair use analysis must be conducted on a case-by-case basis.

Essentially, all works first published in the United States prior to 1923 are considered to be in the public domain in the United States, as are works published between 1923 and 1963 on which copyright registrations were not renewed. Materials created since 1989, other than those created by the U.S. federal government, are presumptively protected by copyright. Therefore, the likelihood that materials of greatest interest are in the public domain is low. In addition, you must also consider other forms of legal protection, such as trademark or patent protection, before reusing third-party content.

The legal concept of the public domain as it applies to copyright law should not be confused with the fact that a work may be publicly available, such as information found in books or periodicals, or on the Internet. The public domain comprises all those works that are either no longer protected by copyright or never were.

Also, in rare instances, works may be "dedicated" (donated) to the public domain.

Public domain materials generally fall into one of four categories:

  • Works whose copyrights have lapsed due to the passage of time or the failure of the copyright holder to renew a registration (a requirement that applies to works created before 1978).
  • Generic information, such as facts, numbers and ideas.
  • Works created prior to March 1989 that failed to include a proper notice of copyright.
  • Works created by the U.S. federal government.
Fair use is a uniquely U.S. concept, created by judges and enshrined in the law. Fair use recognizes that certain types of use of other people's copyright protected works do not require the copyright holder's authorization. In these instances, it is presumed the use is minimal enough that it does not interfere with the copyright holder's exclusive rights to reproduce and otherwise reuse the work.

Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered "fair use."

Fair use is primarily designed to allow the use of the copyright protected work for commentary, parody, news reporting, research and education. However, fair use is not an exception to copyright compliance so much as it is a "legal defense." That is, if you use a copyright protected work and the copyright owner claims copyright infringement, you may be able to assert a defense of fair use, which you would then have to prove.

The concept of fair use can be confusing and difficult to apply to particular uses of copyright protected material. Understanding the concept of fair use and when it applies may help ensure your compliance with copyright law.

  • The effect of the use on the potential market for or value of the copyright protected work.
    This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit, educational purposes.
    If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.

  • The nature of the copyrighted work.
    Use of a purely factual work is more likely to be considered fair use than use of someone's creative work.

    At one extreme, simple reproduction of a work (i.e., photocopying) is commonly licensed by copyright holders, and therefore photocopying in a business environment is not likely to be considered fair use.

    At the other extreme, true parody is more likely to be considered fair use because it is unlikely that the original copyright holder would create a parody of his or her own work.