Copyright and Digital Projects – Digital Humanities Toolkit

Disclaimer

This page is not intended to be legal advice. Copyright is a complicated and multi-faceted issue and requires you to make judgment calls and accept a certain level of risk whenever you use the intellectual property of someone else. Librarians can help talk you through copyright matters so you can make a decision, but we are not the final arbiters of what can and cannot be used in a digital project. Ultimately, that is your decision. For copyright consultations and questions, email the library’s copyright committee.

This guide acts as a supplement to the library’s Copyright Research Guide and focuses on digital projects but can be used as a general introduction as well. For a more comprehensive view of copyright, view the guide.

General Copyright and Fair Use Resources

Stanford Copyright and Fair Use Center: One of the better one-stop websites for all things related to copyright.
Fair Use Checklist from Columbia University Libraries: A PDF checklist to determine the factors that favor fair use, vs. the ones that oppose it.

Copyright and Fair Use Basics

Watch these two videos for a general introduction to copyright and fair use. The first video, Copyright Basics for Teachers, is applicable to both faculty and students.

The second video from the Copyright Clearance Center isn’t allowed to be embedded into any website, so you have to only view it from YouTube.

Copyright and Media in Digital Projects

Copyright is a legal concept that protects the rights of authors/creators and their work from being used/copied without permission. It also protects the rights of those who want to use someone else’s work under the concept of Fair Use. In short, you must have permission to use what belongs to someone else in certain circumstances, such as publishing or selling.

Unlike using media in a paper or presentation that only a professor/class sees, when using media in a digital project, you have to take into account that the general public will have access to the site. A website is considered a “fixed, tangible medium” in copyright terms. That means using the copyrighted work of others, including text, images, sounds, videos, and other media, without the permission of the copyright holder, can potentially result in a copyright violation unless a Fair Use exemption can be justified.

In order to respect copyright laws and the rights of creators, the general rule is that for any creative works published after 1925, you must get the copyright holder’s permission. However, if the author has released their work under a license, such as a Creative Commons license, then there is more flexibility in using media for digital projects.

What About Fair Use?

While Fair Use covers the use of some copyrighted materials used in an educational setting, not every use of copyrighted materials in an educational environment is considered Fair Use. There are no set standards for how Fair Use is applied until an infringing use is taken to court.

A good example is the use of a high-resolution image taken from another website and placed on a student blog. If the student is using the image to explore a scholarly issue, such as applying annotations developing a critique, then it’s more likely there is a Fair Use exception to copyright. However, if the image is used just for the purposes of decoration, then a Fair Use exception is far less likely.

The Four Factors of Fair Use

These are examples of possible Fair Use arguments, and unlikely Fair Use arguments. All Fair Use examples assume that attribution is being applied and no license exists. If the Fair Use argument is unlikely, then permission must be sought out before using.

Transformation

Is the use of copyrighted material transformative, that is, are you using it to apply critique or analysis, or are you adding additional meaning to it? Transformative use of copyrighted material falls on the side of Fair Use.

Possible Fair Use: Taking images from a newspaper and juxtaposing them on a blog post amongst scholarly critique, or using a program to annotate them.
Unlikely Fair Use: Taking an image from a newspaper and using it as a background image for a student blog.

Nature

Is the original copyrighted work mostly factual or creative? Is the original work published, or unpublished?

Possible Fair Use: Copying a quote from a bibliography about President Obama and placing it on a website in order to provide background information.
Unlikely Fair Use: transcribing a private journal entry from a private citizen about President Obama from an archive, and then putting it on a website.

Amount and Substantiality

The less that is used, the more likely a Fair Use exemption applies. There is no hard and fast amount, such as 10% or 30 seconds. However, if you use the part that is most “memorable” or substantial from the original work, then the amount being used is less relevant. This rule is best considered in conjunction with the transformative aspect of the use. That is, even if a small portion of the original work is being used, it should still be used in a transformative way, such as providing critique or analysis.

Possible Fair Use: Clipping 10-second portions of popular songs and placing them on digital timelines to show the evolution of music.
Unlikely Fair Use: Downloading an MP3 of a popular song and adding it to a website that only provides scholarly analysis of the chorus.

Market Effect

If the use of copyrighted material affects the ability of the author to sell their work or expand how they put it in the marketplace, then a Fair Use exemption is less likely. Copyright covers derivative works as well, such as translations and remixes, even if the author hasn’t created those derivatives yet. The amount and transformative Fair Use exemptions can also work in conjunction with this factor.

Possible Fair Use: Translating parts of a modern foreign language movie and creating subtitles for short clips of it, then placing the clips on a digital map that shows non-English films.
Unlikely Fair Use: Translating an entire film into English, adding subtitles, then placing on YouTube.