Copyright at OHSU

United States Copyright Law contains exemptions designed to encourage creative uses of copyrighted material. If your desired use of copyrighted material falls under one of these exemptions, you do not have to ask permission to use the material.

In this section, you will learn what these exemptions are and how to determine if one or more of them cover your use of copyrighted material.

Fair use (§ 107) is an exemption in copyright law that seeks to balance the interests of copyrighted works' creators and the public's ability to benefit from those works “by permitting the unlicensed use of copyright-protected works in certain circumstances” (United States Copyright Office, 2017c).

Fair use allows limited use of copyrighted material without permission for purposes such as research, scholarship, teaching, criticism and news reporting. However, using works for research or educational purposes does not necessarily mean that you may copy or distribute a work without permission.

When making a fair use determination, the law requires four factors be considered. Each of these factors is given equal weight:

1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used
4. The effect upon the potential market for or value of the copyrighted work

The information below outlines factors that favor or disfavor a fair use defense. Use a fair use checklist to help weigh these factors and document your assessment.

Factor 1: The purpose and character of the use

• Transformative use that creates a new work or uses the original work for a new purpose is favored as fair use.
• Educational, nonprofit and personal uses tend to be favored as fair uses.
• Commercial use tends to weigh against fair use, but it isn’t automatically disqualifying
• Derivative works such as translations are not considered transformative and weigh against fair use.

Factor 2: The nature of the copyrighted work

• Courts tend to favor fair use for factual works over fictional works.
• Fair use also tends to favor uses of published works more than unpublished works.

Factor 3: The amount and substantiality of the portion used

• In general, the less of a work used, the more likely the use would be favored as fair.
• Using an entire work might be favored as fair use when the use is transformative and does not substitute for the original.
• If the most creative or essential parts of a work are used, it might not be considered as fair use regardless of how much of the work is used.
• Courts have endorsed the 10 percent rule in the past; for example, it was considered fair to use of 10 percent or less of a total work or one chapter of a book with 10 or more chapters. This should not be relied upon for determining fair use.

Factor 4: The effect of the use on the potential market for or value of the copyrighted work

• This is typically seen as the most important factor.
• The more copies of a work are distributed, the less likely it is to be considered fair use.
• The more similar the audiences for the use of the work and the work itself, the less likely it is to be considered fair use.
• Repeated or long-term use might not be considered fair use.
• If there is a reasonable means to obtaining a license for the work, it might not be considered fair use.

Creative Commons provides a free and standard set of licenses that copyright owners can apply to allow others to use their work via specific conditions without seeking permission.

The chart below illustrates the permissions allowed by each of the Creative Commons licenses. If the material you want to reuse has been released under a Creative Commons license that allows for your desired use, you do not need to consider any other copyright exceptions or seek permission from the copyright holder.

Many platforms and search engines such as the Internet Archive, Flickr and YouTube enable users to discover images, video, research and educational texts with a CC license.  

Chart from University of Pittsburgh Libraries.

The public domain consists of materials that are not protected by copyright and may be used freely by everyone without obtaining permission or citing the original author. The public owns the materials in the public domain. The public domain includes materials authored by the U.S. Government, materials with an expired copyright term or materials for which the copyright owner has failed to maintain their copyright.

The rules for establishing public domain status for a work are dependent on several factors including its age, the conditions under which it was originally published and work type. The Cornell University Library maintains a guide to copyright terms and public domain in the United States that can help you determine the status of a work you want to use.

If none of the exemptions detailed above apply to your desired use of copyrighted material, you can seek permission from the rights holder.

There are two ways to obtain permission to use copyrighted materials: contact the copyright holder directly, or use a rights clearinghouse. Whether you are contacting a rights holder directly or using a clearinghouse, you will need:

• Exact citation of the work to be used or copied
• Exact description of which rights you are requesting (how you plan to use the work)

If you are contacting the rights holder directly:

• Use a sample letter to guide your request (an example is provided in the list of links below)
• Get permission in writing (email is okay, but a physical signature is best)
• Give yourself plenty of time

If you are using a copyright clearinghouse, be aware that different clearinghouses deal with different types of works:

• For text/print materials (books, journal articles, etc.), visit the Copyright Clearance Center
• For art images, visit the Artists Rights Society

The organizations listed here do not represent every creator or type of work. If you are having trouble locating rights for a specific work, please contact copyright@ohsu.edu.