The Catholic University of America

Copyright and Digital Images

II. When Copyright Permission Is Not Required

B. Fair Use

If public domain is not available as a basis for using the image, you may still be able to use the image by claiming "fair use." The law allows for the reasonable unauthorized use of an original work when that use advances the public welfare. This exception to copyright law is known as the "Fair Use Doctrine" and it is codified at 17 U.S.C. § 107 as follows:

. . . the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, newsreporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(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;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyright work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of the above factors.

These factors are considered part of a balancing test to determine whether the use will benefit the public (i.e., uses for nonprofit educational purposes should be favored over commercial uses). An explicit part of the equation is whether the potential market for the original work diminishes as a result of the unauthorized use.

Fair use is considered a defense to a claim of copyright infringement, but the defending party carries the burden of proving that the use of the work was fair. Whether or not a use will be a fair use is highly dependent of the context of the usage, which is addressed in further detail below. For example, if you are placing a digital image of a work of fine art that is not in the public domain on a password-protected Web site that will be viewed only by students taking a particular course, then the use may be a fair use. Similarly, if you are placing images of buildings, the source of which are books or magazines, on a password-protected Web site, you may also be able to claim fair use. However, placing the same images on a Web site open to anyone who uses the Internet would be less likely to be considered a fair use.

See the Visual Resources Advocacy Statement: The Transition from Analog to Digital: Images in Education and Scholarship and the Visual Resources Collection, by Christine Sundt. This statement sets forth proposed fair use practices, translating how analog fair uses should be able to be carried over into digital fair uses. For example, it is argued that making a digital image for classroom use from reproductions in copyrighted printed matter without permission, when suitable digital reproductions are not available through commercial vendors, ought to be a fair use.

The legalities of digitizing art images not in the public domain and placing them on a password-protected Web site for educational purposes have not been fully resolved. Until it is, universities need to strike a fine balance between avoiding liability for copyright infringement and continuing to meet the educational needs of the institution at an affordable cost. Although the law itself does not answer these questions, the Visual Resources Association guidelines, which were recently finalized and are summarized below, can be used to fill the gap.


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links updated 6/5/08 rab