Using Copyrighted Content

To use existing content that you did not write yourself, one of the following criteria must be met:

• The work is in the public domain (in other words, not under copyright)
• The author has assigned a Creative Commons license that allows the work to be reused
• Your proposed use meets the criteria for Fair Use
• You have the author’s written permission to use the work

Since we’ve already covered how to identify public domain and openly-licensed content, let’s focus on the latter two.

Fair Use

United States copyright law recognizes that there are certain uses of copyrighted works that benefit society without causing undue harm to copyright holders. These kinds of uses are allowed under the doctrine of fair use, which means they do not require permission from the copyright holder.

Some examples of fair use listed in copyright law include criticism, commentary, parody, news reporting, teaching, scholarship, and research. However, not all uses made for these purposes will automatically be fair. Instead, copyright law provides a framework to determine what uses should be considered fair. This means that fair use must always be considered on a case by case basis.

Everyone is free to make fair uses of copyrighted works, but copyright owners can disagree on what qualifies as fair use and assert that uses are copyright infringement. This means that those who want to exercise their fair use right should consider their use under the framework provided by copyright law and weigh the risks involved in certain uses.

Four Factors of Fair Use

Four factors, listed below, must be considered when you are determining whether your use of a work falls under fair use. Remember that you must take into account all four factors together.

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 The nature of the copyrighted work (e.g., fiction or nonfiction, published or unpublished, important to educational objectives). Factual works (e.g., scientific or historical) are more likely to be covered by fair use than creative works (e.g., literature, movies).
3. The amount of the work used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for or value of the copyrighted work.

Documenting Your Analysis

If you include content in your resource on the basis of fair use, you should keep documentation of your analysis. In the unlikely event that your use of the work is ever challenged, you will need to demonstrate your good efforts. That challenge could arise far in the future, so keep a permanent file of the records.

A great resource for documenting this process is the Focus on Fair Use Worksheet.

Attributing Content Included under Fair Use

You should still provide clear attribution for any content you’re reusing, even (and especially!) if you’re using it on the basis of fair use. You can use this template for attribution:

[Title] by [Author], included under fair use as described in the CBPFUOER.

Further Reading on Fair Use

You can read more about fair use in the VCU Libraries guide on fair use.

You can also find more information about fair use as it specifically applies to OER in the Code of Best Practices in Fair Use for Open Educational Resources: A Guide for Authors, Adapters & Adopters of Openly Licensed Teaching and Learning Materials. This code was created to support authors, teachers, professors, librarians, and all open educators in evaluating when and how they can incorporate third-party copyright materials into OER.

Using Copyrighted Materials with Author Permission

If your proposed use does not fall under the Fair Use exception, the only permissible way to use that content is with permission from the original author.

To do so, start by writing to the original publisher, even if the copyright is in the author’s name. If that publisher does not retain publication rights, it should be able to refer you to the owner of the material. The copyright owner may work with an agent or service that grants licenses to use a work on the copyright owner’s behalf. For unpublished material, you should write to the author directly.

When contacting the copyright owner, you may want to include the following information:

• The name of the author, editor, or translator
• The title of the work and any edition or volume number
• Exact material you want to use, being as specific as possible
• Copyright date of the work
• How you will use the material
• The audience to whom the work will be distributed or otherwise made available
• Whether the material will be sold
• Name of your organization—note if it is a nonprofit
• Your name and contact details

This process can take time, so you should plan to reach out to the publisher early and anticipate delays.

Keep a copy of all correspondence, forms, and if obtained, written permission. In the unlikely event that your use of the work is ever challenged, you will need to demonstrate your good efforts. That challenge could arise far in the future, so keep a permanent file of the records. Moreover, you might need to contact that same copyright owner again for a later use of the work, and your notes from the past will make the task easier.

Sources

Crews, K. D. (n.d.) Asking For Permission. Columbia University Libraries Copyright Advisory Services.  Retrieved from https://copyright.columbia.edu/basics/permissions-and-licensing.html

United States Copyright Office. (2021). Circular 16A: How to Obtain Permission. Retrieved from https://www.copyright.gov/circs/circ16a.pdf