U.S. Copyright law governs, among other things, using copyrighted material in research papers, published books and articles, web pages, exhibits, plays, songs, etc. Ultimately, you are responsible for determining whether you need permission to make use of a work.
The law defines “publication” as offering for distribution or actually distributing copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Publication has been interpreted by the courts as distribution to numerous individuals who are under no explicit or implicit restrictions with respect to the use of the contents. An informational text, such as this one, is published if it is distributed to the public, whether or not it is offered for sale. Generally, material is considered unpublished if it was not intended for public distribution or if only a few copies were created and distribution was limited.
Copyright in an unpublished work lasts for the life of the author plus 70 years. If the author (or the author’s death date) is unknown or if the author is a corporate body, then the term is 120 years from the creation date for the work. Therefore much unpublished material in archives or manuscript collections is likely to still be under copyright.
The fair use doctrine (as codified in Section 107) recognizes that there are uses that do not infringe on the rights of copyright holders and provides a defense for the use of copyrighted works without permission from the copyright owner. The statute does not say what is or is not fair. Rather, courts evaluate fair use cases based on four factors, no one of which is determinative in and of itself:
The purpose and character of the use: How are you using the copyrighted work, and in what context? The statute lists several examples of the kinds of uses that might be fair—“criticism, comment, news reporting, teaching, scholarship, and research.” This list is not all-inclusive and some uses that fall under one of these might not be fair. Commercial uses can be fair, but courts tend to give more weight to noncommercial uses. Recently, courts have primarily been asking if the use is transformative; does it “merely supersede” the original work or does it add “something new, with a further purpose or different character, altering [it] with new expression, meaning, or message?” [Campbell v. Acuff-Rose Music]
The nature of the copyrighted work: Is the work you are using published or unpublished? Is it highly creative or primarily factual? Courts give more protection to works that are “closer to the core of copyright protection,” such as unpublished or highly creative works. [Campbell v. Acuff-Rose Music]
The amount and substantiality of the portion used in relation to the copyrighted work as a whole: There is no predetermined amount of a work that constitutes fair use or that is automatically an unfair use. Determining factors include how much of the copyrighted work was used, the relative importance of the amount used to the work as a whole (whether the portion used constituted “the heart of the work,” for example), and whether the amount used was justified by the purpose and character of the use. [Harper & Row v. Nation, Campbell]
The effect of the use upon the potential market for, or value of, the copyrighted work: This factor assesses how, and to what extent, the use damages the existing and potential market for the original. Courts have recognized that where uses are highly transformative under the first factor, the affected markets receive less protection. [Castle Rock v. Carol]
Yes, it is possible. Because of the case-specific nature of fair use, you can only know whether a use is fair if a court rules it to be so. However, several authorities have produced guides to help people take advantage of this vague, but very useful, exception to copyright. If there is a question about whether a particular use is fair, it is always safe to seek permission.
The Society of American Archivists’ Intellectual Property Working Group has produced a document that is designed to provide guidance on this dilemma—commonly known as the Orphan Works problem—and that suggests search strategies for identifying the creator of a work, identifying the work’s copyright holder, and for locating the copyright holder.