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English 303: Multimedia Writing: Public Domain and Fair Use

Copyright and multimedia for eBook writing

Fair Use Factors

Fair Use is an exemption that is provided within the copyright law, that allows someone to use a copyrighted work without permission. 

There are four factors considered for fair use; not all have to be met in order for the fair use argument to be used - however, just meeting one of the factors can also not necessarily be considered conclusive.

Purpose Nature Amount Effect

the purpose and character of the
use, including whether such use is
of a commercial nature or is for nonprofit educational
purposes;  was the use transformative?

the nature of the copyrighted work

the amount and substantiality of the
portion used in relation to the copyrighted work as a whole; what it the 'essence' of the work?
the effect of the use upon the potential market for or
value of the copyrighted work

The difficult aspect of fair use is that there is no hard and fast way to know if your use is a fair use; that can only be decided by litigation.  All four of these factors need to be considered when trying to decide.  A fair use analysis should be done on a case by case basis.

For example, anything used when teaching a class is probably an educational use, which is one of the four factors.  However, this doesn't mean that a court would rule favorably in every single case that involved teaching; the other factors also play a part. 

Was the use transformative or a direct copy?  There is more leeway for a transformative use, such as a parody or mash up, than for a direct copy of a piece of work.  A good example of this is the Andy Warhol Campbell Soup can paintings; while they directly copied the cans, their transformation is what made the copy allowable.

Was the amount used reasonable or was it the entire work or the "essence" of the work?  Did the use have an effect on the market for the item?  Was the work used fiction or non-fiction?  Courts tend to look more favorably at allowing the exemption if the item was nonfiction.  For example, using part of a newspaper story vs. using part of a novel.

This checklist is a handy tool to use when considering fair use.

The Copyright & Fair Use Center at Stanford has a short video that explains fair use in a very concise way.

Public Domain

The amount of time an item is covered by copyright is not limitless.  So, while some works are never protected by copyright, other items that are protected by copyright can have that protection expire.  In both of these instances, items are considered to be in the "public domain".  

Here are sources to check to see if a copyright has expired and/or if a work is in the public domain:

Is it protected by copyright?

When works pass into the public domain  by Loly Gasaway

Copyright Term and the Public Domain by Peter Hirtle (includes international information)

Other public domain resources:

Duke Center for the Study of the Public Domain

Bound by Law? Tales from the Public Domain by Keith Aoki, James Boyle and Jennifer Jenkins.  Duke University Press, 2008.

What could have entered the public domain this year