copyright and fair use typewriter

Copyright and Fair Use

We all want content for our blog and social media posts. You might know how to credit someone to avoid plagiarism but do you know how to avoid copyright infringement?

Blogging was the copyright infringement wild west for a long time. But now we know better, and we can do better. We can treat content creators fairly and respectfully, especially if we want to be a member of the community with them. This guidance applies to images, text, audio, and more.

copyright and fair use typewriter
Copyright by Dennis Skley via Flickr. Flickr is one useful place to find images with a clear license. This image was shared under a Creative Commons Attribution-No Derivatives license, meaning that people are free to use it as long as they credit the original creator and don’t change the original image.

Fair Use of Images

Images seem to be one of the most problematic areas when it comes to fair use. We all need images and it’s easy to just do a Google Image search without considering where the image came from. We might be tempted to use the image and just caption it with the source, but that isn’t enough.

MIT Libraries has a handy guide, Copyright & Fair Use: Using Images. They describe that “Properly citing sources protects against plagiarism.” but “Following fair use principles protects against copyright infringement.”

The Stanford University Libraries page on Copyright and Fair Use elaborates. Giving an image owner credit does not protect against copyright infringement.

Some people mistakenly believe it’s permissible to use a work (or portion of it) if an acknowledgment is provided. For example, they believe it’s okay to use a photograph in a magazine as long as the name of the photographer is included. This is not true. … When in doubt as to the right to use or acknowledge a source, the most prudent course may be to seek the permission of the copyright owner.

How Do We Determine What’s Fair?

Whether we’re talking about photographs, text, video, or any other content, fair use can be hard to determine because is determined by the courts, case by case. There are no hard lines of what is fair and what is not fair.

There are things we can do that are “safe”. For example, we can use Creative Commons licensed images and be careful about how we use quotes. And there are things that are likely a copyright violation like reprinting others’ work for our own commercial gain. But there’s a very large grey area in between.

Judges use copyright law (see the 4 Factors below) as their starting point but build upon that by looking at previous cases. Therefore, the best way to determine if a “grey” use is fair (other than a potentially costly visit with an intellectual property lawyer) is to look at examples in the case law (such as Stanford Libraries’ Summaries of Fair Use Cases). If you can find a fairly recent example similar to your intended use that was found by a court to be fair use, then perhaps your use is fair as well. If similar examples in case law were found to violate copyright, then you’re well advised to stop.

Four Factors of Fair Use

There are 4 factors, described by Section 107 of the Copyright Act. The US Copyright Office elaborates in More Information on Fair Use. The 4 factors are:

  1. Purpose and character of your use,
  2. Nature of the copyrighted work,
  3. Amount and substantiality that you used, and
  4. How your use affects the owner’s ability to market their work.

Stanford Libraries has some excellent examples and descriptions of the 4 factors. These can help us ask ourselves questions to determine if our use of someone else’s work is fair use.

Fair Use Factor 1

Non-profits get some slack but not if they aren’t considering the other factors! More important is whether you’re transforming the work into something new. Stanford describes a Harry Potter example – copying text into a new order isn’t fair use!

Fair Use Factor 2

If you’re using a published non-fiction work in your own work, that’s better than using an unpublished fiction. But we still have to consider the other factors.

Fair Use Factor 3

Are you using the whole work, or just a portion? If using a portion, is it the “heart” (most memorable or important part) of the work?

Fair Use Factor 4

Is your use taking away from the creator’s use of their own work? Many science communicators don’t blog for money, but if your use makes it so people are going to your site instead of the creator’s site, IMHO you need to rethink your use.

Best Practices

The Center for Media and Social Impact at American University’s School of Communication has multiple Codes of Best Practices having to do with fair use for different types of media and different types of use. For example, they even have Best Practices in Fair Use of Dance-Related Materials!

The best practice code that’s most relevant for bloggers (and of course journalists and aspiring journalists) is Set of Principles in Fair Use for Journalism. I’ve pulled out a few key items below, but everyone should read the whole code.

 fair use is not medium-specific … the principles of fair use apply equally to a newspaper article, a piece of music, a film, a user’s tweet, and a website.

Attribution is a highly prized journalistic value, though not one that features significantly in the U.S. copyright law … Merely identifying the source material does not make an otherwise unjustified use “fair,” nor does the law literally require that uses be accompanied by attribution in order to be considered fair. …. obviously, if it is important to use specific copyrighted content in a particular piece of journalism, appropriate citation helps make that justification more apparent.

Journalists recognize that re-using copyrighted material is central to their work.  Responsible aggregation is a key and perennial feature of journalism; journalists always have “advanced the story” by building upon the work of other journalists … However, the rise of journalistic enterprises that embrace aggregation as a business model has created a heightened awareness, and sometimes alarm, about re-use and sharing of journalistic work.

Side note, these 3 excerpts amount to approximately 4% of the full Code based on the number of words and number of characters (which I know thanks to WordCounter). My use is educational and non-commercial, and the work I’m quoting is a published work of non-fiction. I’ve transformed the quotes by making them into a new work. I don’t take the “heart” of the work and I also encourage people to go back to the original work. These are the sorts of things we can think about when considering if our use is fair.

copyright and fair use
Newspapers by AbsolutVision via Pixabay. Pixabay is another place to find images with a clear license. This image was shared under a Creative Commons Universal Public Domain license, meaning no attribution is needed, and anyone can modify the work without permission.

Still not sure?

Copyright and fair use is a lot like being a good neighbor. How would you want people to treat your work, or the work of someone you care about? Hopefully most of us want to be treated fairly and want to treat others fairly. If that’s not enough, there’s copyright law and eventual threat of lawsuit if we’re not careful.

When in doubt, always ask the content creator! They may say no, or ask for a fee in return for use of their work. That is their right as the creator. If the content creator isn’t available, consider using something else. You might link to it instead, or refer to it in another way, if you really need to include it in a post.

There are many, many resources on copyright and fair use. I’ve cited quite a few here, but you can easily find many more. Another that I came across was The Educator’s Guide to Creativity & Copyright on the Connect Safely blog. This post might be useful in teaching students about copyright.

Disclaimer: I’m not a lawyer. I’m just sharing what the Copyright Office, and organizations like Stanford Libraries and MIT Libraries have put out. If you have remaining questions, contact a lawyer with specific expertise in intellecutal property law.

Anastasia recently shared some of this information on Twitter and elaborated the Biofortified Blog as part of our Side with Science project, where we provide commentary and guidance about science communication. Have advice for science communicators? Contact us to submit a guest post!

Note: This post was updated on January 31, 2019 to add the section How Do We Determine What’s Fair? thanks to an insightful comment on the Biofortified Facebook page.