Copyright, Fair Use, and Creative Commons

Framework for Copyright Analysis

One of the most challenging issues for people when encountering a copyright problem is simply knowing where to start. To get started, work through the following five questions in the order they are presented to identify which areas of copyright law apply to a specific problem that you need to address.

A Framework for Analyzing any U.S. Copyright Problem

1. Is the work protected by copyright?
   • Is the work I want to use protected by copyright, or is it in the public domain?
   • If I wrote it, do I still own copyright, or did I sign over rights for my intended use to the publisher?
2. Is there a specific exemption in copyright law that covers my use?
   • Is my intended use covered by a specific exemption to the exclusive rights in the copyright law, such as the ones for libraries or for classroom performances and displays?
3. Is there a license that covers my use?
   • Is there a Creative Commons license attached to the work? If so, can I comply with the terms of the license, or can I find another useful work that is CC-licensed?
   • If it is a library item, is there a license that governs how the copyright material can be used? If so, can I comply with the license terms? If you are uncertain, your librarian should be able to help.
4. Is my use covered by fair use?
   • Four factors of fair use are:
     • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
     • the nature of the copyrighted work
     • the amount and substantiality of the portion used in relation to the copyrighted work as a whole
     • the effect of the use upon the potential market for or value of the copyrighted work
   • Questions for transformative fair use under factor one are:
     • Does the copyrighted material help me make my new point?
     • Will it help my readers or viewers understand my point?
     • Have I used no more than is needed to make my point? (Is it "just right?")
5. Do I need permission from the copyright owner for my use?
   • If so, first locate the copyright owner and fully explain your intended use in your permission request.
   • If no response or the answer is no, reconsider your use of this work to see if you can make a case for fair use, or consider using another work.

Attribution: This adaptation of "A Framework for Analyzing any Copyright Problem,” by Kevin Smith, Lisa A. Macklin, and Anne Gilliland, is released under a CC-BY-SA Creative Commons License.

Copyright Analysis Tools

Copyright Clearance Center
The Copyright Clearance Center (CCC) helps organizations integrate, access, and share information through licensing, content software, and professional services.

Copyright Decision Trail- Brigham Young University Copyright Licensing Office
The BYU Copyright Decision Trail is an interactive tool for helping users make informed copyright decisions.

The Copyright Genie
Answer the genie's questions to determine if a work is still protected by copyright and when it might enter the public domain. From the ALA's Copyright Advisory Network.

Digital Copyright Slides
A quick and easy slideshow for determining whether something may be in the public domain, from the ALA Copyright Advisory Network.

Educational Exceptions in the U.S. Copyright Code
A tool to help you evaluate whether your intended use of material fits within the various exemptions in copyright and educational purposes.

The Fair Use App: An Interactive Guide for Filmmakers and Video Creators
Created by the New Media Rights program.