Copyright, Public Domain, and Fair Use

What is Copyright?

Copyright is a form of legal protection automatically provided to the authors of “original works of authorship,” including literary, dramatic, musical, and artistic works. Copyright in the U.S. is automatically assigned to creators of work, with no registration necessary.

It can be unlawful to use copyrighted works of others without their permission, and no permissions are granted in the case of All Rights Reserved works. Activities such as copying, modifying, publicly displaying, publicly performing, and distributing copies of All Rights Reserved work may be illegal unless permission is granted by the creator. U.S. copyright law generally gives the author, creator, or owner of an original creative work an exclusive right to

  • Reproduce, copy, or distribute the original work to the public (e.g., create and sell copies of a film)

  • Create new works based upon the original work (e.g., make a movie based on a book)

  • Perform or display the work publicly (e.g., perform a play)

Violation of one of these rights is called copyright infringement. However, the use may be authorized by copyright limitations such as fair use.

What is the Public Domain?

A public domain work is a creative work that is not protected by copyright, which means it’s free for you to use without permission. Works in the public domain are those for which intellectual property rights have expired, have been forfeited, or are inapplicable.

Here are some examples of works in the public domain:

  • Material created by the US Government

  • Materials for which Copyright Protection has expired

  • Works released to the public domain when they were created

Determining if a work is in the public domain can be difficult because the terms of copyright protection in the United States have changed over time. The Cornell University Library Copyright Information Center has comprehensive tables for understanding what works might fall into the public domain.

What is Fair Use?

This short video offers a brief overview of the doctrine of fair use.

According to the U.S. Copyright Office, fair use is

a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.

Whether or not a specific use falls under fair use is determined by four factors:

  • the purpose and character of your use

  • the nature of the copyrighted work

  • the amount and substantiality of the portion taken, and

  • the effect of the use upon the potential market

The Center for Social and Media Impact has developed Codes of Best Practices in fair use for various disciplines and formats. The Code of Best Practices in Fair Use for Open Educational Resources offers guidelines for using copyrighted materials in OER. These codes can help faculty and others determine if their use falls within the fair use factors.

The four factors are weighed in each case to determine whether a use qualifies as a fair use. If use of copyrighted material is not found to fall under fair use guidelines, then it is considered an infringement of the copyright holder’s right. Copyright owners may disagree with one’s fair use interpretation and request the removal of the material. If the material is not removed, the dispute may be resolved by a lawsuit or arbitration.

Recognizing the differences between how copyrighted material and public domain material can be reused and shared legally, allows for a comprehensive understanding of the fair use principle.

Additional information on fair use can be found at the University of Michigan Library - Copyright Basics.