Copyright and Fair Use

Some guidelines for navigating this daunting topic.

A quick warning about the contents of this page: this page of guidelines is not a legal review. It is meant as advice only and you should consult with an attorney if you have concerns about a copyrighted work. Most importantly, it's a court of law that decides if something is fair use or copyright infringement and their interpretation, which means:

If you use something without permission that you believe is fair use, you can still be sued. However, assuming a judge agrees with you that it's Fair Use, and you win in copyright court, you can collect attorney fees from the plaintiff. Alternatively, if someone takes something from your website that you've incorrectly or incompletely attributed or received permission for, they can point to you as the source, and you will be liable.

There are risks to everything. Use all copyrighted work at your own risk.

Copyright in the classroom

Video, text, and images in the classroom or behind password protection are usually fine (as long as you aren't infringing on textbook copyrights; this means you are not copying the textbook in your class). For example, you can use copyrighted images in your PowerPoints and on handouts, and in your learning management system. You can show videos in class.

Learn more about the TEACH Act »

Video and images that are publicly available online require you to follow copyright and Fair Use rules. Assume everything you find online is copyrighted and unavailable, unless it says otherwise.

Using copyrighted works

Even if a work is copyrighted, you may still be able to use it:

  1. Find out who owns the copyright and then ask permission
  2. Make your own images (that don't infringe on original material)
    • Data are not copyrightable, so you can always make your own graphs and figures!
  3. Use without permission as long as your use meets the legalities of Fair Use

Fair Use

Fair Use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement and can be done without permission from the copyright owner.

Fair Use means that your use doesn't replace the purpose, nature, or effect of the original work. (The amount you use of the original work can impact all three of these, so together, these are the 4 standards against which you should measure your use to decide if it's fair use: purpose, nature, effect, and amount.)

  1. What is the purpose and character of the use?
    » If your use achieves the same purpose or has the same character, it may not be Fair Use.
  2. What is the nature the original work?
    » If your use has the same nature, it may not be fair use. For example, if you use someone else's recipe as a recipe, it's probably not fair use. If you use it in a painting, it may be.
  3. Amount and substantiality of the portion used?
    » If you are using a substantial amount of the original material, it may not be fair use.
  4. Effect of the use on the potential market for, or value of, the original?
    » If your use usurps the market of the original author/material, it's not fair use. For example, if your use means students don't buy a book with those same figures, it's not fair use.

In its most general sense, a fair use is any copying of copyrighted material done for a limited and "transformative" purpose, such as to comment upon, criticize, or parody a copyrighted work. For Fair Use, you must transform the work by adding something new with further purpose or character, new expression, meaning, or message.

If "transformative" seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.

Some examples of Fair Use:

It is considered fair use to

  • use thumbnail images of Grateful Dead posters in book about Grateful Dead history because it is a different use than the original
  • use someone else's photo for bigger overall commentary on culture
  • create an image that uses the exact same setup, to simulate the original image but turn it into a parody
  • capture copyrighted media content in the process of filming something else.
    i.e.: the audience won't go to a movie to listen to the music instead of buying the CD.
  • use copyrighted material in a historical sequence

Two particular categories of Fair Use allow for the use of all or a substantial portion of a particular work: (1) commentary and criticism, or (2) parody.

Commentary and Criticism

If you are commenting upon or critiquing a copyrighted work — for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:

  • quoting a few lines from a Bob Dylan song in a music review
  • summarizing and quoting from a medical article on prostate cancer in a news report
  • copying a few paragraphs from a news article for use by a teacher or student in a lesson
  • copying a portion of a Sports Illustrated magazine article for use in a related court case

The underlying rationale of this rule is that the public reaps benefits from your review, which is enhanced by including some of the copyrighted material. Additional examples of commentary or criticism are provided in the examples of fair use cases.

Parody

A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to "conjure up" the original. See examples at Stanford University Law School's Copyright and Fair Use, Center for Internet and Society

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Creative Commons

Since 2002, Creative Commons has been publishing simple and easy-to-use copyright licenses. There are many types, but the one we are most interested in is the CC Attribution-NonCommercial-ShareAlike 3.0license (opens in new window).

For all Creative Commons licenses bear in mind that the copyright holder (author) retains their copyright and may license their material under other license terms on a case-by-case basis. For example, a photo I shot that I license by CC on Flickr may also be licensed separately to another individual or publisher for commercial use under terms that do not include the share-alike restriction. Assigning a Creative Commons license allows certain uses to anyone, but does not restrict the copyright holder from licensing that content in less restrictive manners on a case-by-case basis.

Public Domain images and video

The public domain contains works that are not protected by copyright and can be freely re-used by anyone. Images and written works enter the public domain 70 years after the death of the author (in the United States). There are a number of websites that collate many of these images and make them available to the public. There are also a number of images that authors release to the public domain voluntarily. To find these, you can search through sites such as Wikipedia and Flickr. Another good source of public domain images are those from the Federal Government.

Using government-produced images

Images and videos created by the federal government (government works) are not covered by U.S. copyright law and are considered to be in the public domain. This means that they can be freely used, altered, and reproduced in any way, without express permission.

Even when using government-produced, public domain images, it is still wise (and good manners!) to include a caption crediting the images to the appropriate source.

While government webpages are often a good source for copyright-free images, it is important to remember that just because an image or video appears on a federal government web page, it does not necessarily mean the product is in the public domain. Copyright law states that only "a work prepared by an officer or employee" of a federal government agency "as part of that person's official duties" constitutes a "government work" and is therefore in the public domain.

In many cases, government agencies will use images or illustrations on their websites with permission from the copyright holder. Unless the copyright holder has explicitly released their image into the public domain, they will retain intellectual property rights in these cases.

Government agencies also contract private companies to produce images (like in the case of the Elwha River time-lapse cameras). When in doubt, reach out and ask. Federal agencies with good public domain images that can be used in geoscience education include: NOAA, USGS, NPS, and NASA.

Some examples of government works:

Example 1:

An employee of the National Park Service takes a photograph of a geologic feature while on duty. This photo is then placed on the agency website and/or social media page. This image is a government work and is in the public domain.

Example 2:

The same employee takes a photograph of another geologic feature using their own equipment while off-duty. The employee grants the Park Service permission to use the photo on their web page, where the image then appears with a photo credit. This image is not necessarily in the public domain; the copyright still belongs to the photographer since they were not acting in their capacity as a government employee when the photo was taken.

Example 3:

There are two images on this USGS web page about the water cycle:
  • The caption on the first image (water cycle diagram) clearly shows that it is a government work. This image is thus in the public domain.
  • The caption for the second image (distribution of Earth's water) makes it clear that this is an image from a textbook. The copyright for this image likely still belongs to the publisher and should not be assumed to be in the public domain.

Generally a photo caption will indicate which of the above situations applies to the image. If it is unclear whether an image on a government web page is a government work or not, it may be safest to assume that it is not and ask permission before using. The United States Geological Survey has a web page pertaining to copyright issues.

Google Earth and Google Maps images

Many of us use images from Google Maps or Google Earth in our classrooms and teaching materials. Google provides extensive information on attribution and use guidelines. Most importantly, they state that:

"All uses of Google Maps and Google Earth Content must provide attribution to both Google and our data providers. We do not approve of any use of content without proper attribution, in any circumstance. We require attribution when the Content is shown. Requests for exceptions will not be answered or granted."

FAQs and tips

Many questions related to copyright arose and were answered at the Spring 2014 virtual workshop on Designing and Using Video in Undergraduate Geoscience Education. Participants with greater experience in copyright and fair use offered tips and useful advice.

Question: What is the legality of using links to resources, like videos from YouTube? Or other web pages? Or documents that others have developed?

Answer: Refer to Digital Medial Law Project -- Linking to Copyrighted Materials

Synopsis: "courts generally agree that linking to another website does not infringe the copyrights of that site, nor does it give rise to a likelihood of confusion necessary for a federal trademark infringement claim." That includes a straight link on your web page and embedded link on your web page (video starts running immediately).

Exceptions: You are liable if you link to something that itself infringes someone else's copyright. "The situation changes when you knowingly link to works that clearly infringe somebody's copyright, like pirated music files or video clips of commercially distributed movies and music videos. The DMCA makes it illegal to traffic in technology that enables others to circumvent technological measures put in place by copyright holders to control access to or uses of their copyright work."

Question: If I take a copyrighted image from a textbook and recreate it pretty close but not exact (and there are many examples of this same image in mildly different forms in a multitude of other textbooks -- so the actual content is not copyrighted), is there a copyright infringement?

Answer: Ideas and data are not copyrighted. As long as you are not copying the image artistry and presentation (if they even exist), you should be fine.

Question: How do I cite images in a video? Do I have to cite on every page?

Answer: In making videos with copyrighted material (if permission), only need to cite permissions and acknowledgements at the end. You don't need to do so on each image -- put it at the end of the video. Sample end-of-video slide (opens in new window)

Al's tips - Al Trujillo, author, Essentials of Oceanography

  • The animations (short videos) that I helped create with a team of geoscience educators for my publisher are owned by my publisher (Pearson Education). Getting permission to use them is hard to come by, but will vary depending on the use of the video. Generally, they will not allow it to be posted in a public place because they are concerned that it will become too freely available without compensation to the publisher. If you are seeking to obtain permission, direct inquiries to the main editor; a contract will need to be developed (Pearson has a whole legal department). It helps your case if you use the textbook in your classes and that you are requesting use to help students.
  • You can post images and video on a secure site like Blackboard or other course management systems. This is because it's not freely available to the general public, only to the students enrolled in the course.
  • There are video links (via embedded QR codes) in the textbook. Linking to existing publicly available videos is deemed fair usage, so that's why we included them.
  • If you know the author of a textbook, it never hurts to ask for help.
  • The ocean demos (field videos and studio segments) are owned by my college (Palomar College). Generally, you will need to work out a contract with the college to use them.
  • Videos that are in the public domain (such as NOAA, USGS, JPL, and other government sites) are generally safe to use.
  • Other videos that I have created I generally post as publicly available on YouTube, so no permissions are needed. (Example)

Katryn's tips -Katryn Wiese, workshop convener

  • Ask permission! It works. :)
    Using images in videos: I do not use copyrighted images for which I don't have permission. If I really want to use an image and can't get permission or a Creative Commons or Public Domain version, then I will recreate the image using my own graphics program. However, when I do that, I still need to transform the image. These are my guidelines:
    • If unchanged, this is a copyright infringement.
    • If only slightly transformed, and you're copying more than freely available ideas and data, then it's a copyright infringement.
    • If highly transformed (animated, narrated, incorporated into video animation), there is likely no copyright infringement, but how much transformation is involved really matters.
    • If the image exists in multiple textbooks in a variety of different forms, then my newly created version of it is likely not a copyright infringement.
  • Making your own videos and putting them online:
    • Attach a copyright description so folks who use them know what issues are involved.
    • Sample end-of-video slide (opens in new window)
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Additional Resources

Original content for this page was contributed by: Scott Linneman, Zach Schiers, Ron Schott, Al Trujillo, and Katryn Wiese during the Spring 2014 virtual workshop on Designing and Using Video in Undergraduate Geoscience Education. Our growing community of contributors continues to add to these resources. Get involved »
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