Fair use permits educators to make certain uses of others’ works for nonprofit educational purposes.
The statute, 17 U.S. Code 107, does not specify a scope of use; rather, it describes a “weighing and balancing” test one applies to a proposed use to determine whether the use is excused or needs permission from the copyright owner. The test consists of four parts.
First, we consider the nature of the use—whether it is nonprofit and educational or commercial and for-profit. Next, we consider the kind of work you want to use—whether it is factual or creative and fanciful. Then we consider how much of the whole work you will use. Finally, we consider the effect of such a use on the market for or value of the work, if the use were widespread. For more information on how this test works, see “Fair Use of Copyrighted Materials” in the University of Texas Libraries’ Copyright Crash Course.
The first factor weighs in our favor because we consider a dissertation to be very much like any other educational work. Students author dissertations to satisfy degree requirements. They are rarely professionally edited. They mark the beginning of the student’s efforts in a field. And their use of others’ materials generally transforms those materials through the processes of analysis, criticism, illustration and commentary. Thus, dissertations are nonprofit and educational.
The weight of the second, third and fourth factors depends on the proposed use. Use of small portions of a work is better than large portions. And lower-resolution images are better than stunning, reproducible images. Similarly, factual works are easier to justify as fair use than creative and fanciful works, though the study of creative works often requires that they be used and permission for them is often difficult or impossible to obtain. In appropriate proportions and for scholarly transformative purposes, even creative and fanciful works can be used under fair use. But one of the most important considerations is the “market effect” factor, the fourth factor. This factor weighs in favor of getting permission when there is an established permissions market, and in favor of fair use when there is not. For example, it is easy, cheap and quick to get permission to use text materials for educational purposes because the Copyright Clearance Center has established a permissions market for such uses. As a result, the fourth factor will usually weigh in favor of getting permission for text materials. Overall, we should use such materials under fair use more judiciously than we might use images, audiovisuals or music, where no such functional market exists and, indeed, getting permission is impossible in many cases. Be sure to document any effort made to obtain permission in order to demonstrate the lack of a functional market for permission for a particular kind of work.
It is important to understand that no one factor rules all the others. They intersect. For more information, see the Center for Media and Social Impact’s Code of Best Practices in Fair Use for Scholarly Research in Communication.
Short, direct quotations of modest proportions are usually considered to be fair use. For example, a paragraph or two is probably within the bounds of fair use. For longer quotations, seek the permission of the copyright owner.
Images & Graphics
Our guidance about the use of images and graphics as fair use is affected significantly by the fourth fair use factor. It is often difficult or even impossible to get permission to use images and graphics. This situation is changing in some fields where it is now possible to license databases of quality images at reasonable prices for nonprofit educational uses. For example, Saskia and other art history image vendors offer educational licenses. If it is easy to license the right to use the images you need, you should do so. But, for images for which a digital source is not readily available or for which permission is difficult or impossible to obtain, use of images without permission in an educational document like a dissertation is probably a fair use. Again, you should document any efforts you make to obtain permission.
Music & Audiovisuals
The same analysis we apply to images and graphics applies to music and audiovisuals: if you wish to use reasonable portions of such works in your dissertation, document your efforts to obtain permission or license the works. If your efforts show that there is no functional market for permission and no functional licensing opportunities, your use will likely be fair use.
Fair use is not an exact science. But there are good guides out there to help us make decisions about how much of what kinds of works it is appropriate to use when we rely on fair use. Considering the nature of a dissertation as transformative, educational and nonprofit, fair use enables us to use a portion of another’s work that is clearly related to our academic objective of making our points effectively, so long as we are sensitive to when there is and when there is not a functional market for permission.
This document was prepared for the Graduate School by Georgia Harper, and was last modified February 2011. Current questions about copyright can be addressed to Colleen Lyon, Scholarly Communications Librarian.