Fair Use and Copyright

What is fair use?

Fair use is a provision in copyright law that allows the use of a certain amount of copyrighted material without seeking permission from the rightsholder. This means fair use may apply to images (including photographs, illustrations, and paintings), quoting at length from literature, videos, and music regardless of the format. 

How do I determine whether my use of an image or other third-party content in my dissertation is fair use? 

Consider these four factors when making a fair use claim: 

1. For what purpose is your work going to be used?
   1. Nonprofit, educational, scholarly, or research use favors fair use. Commercial, non-educational uses often do not favor fair use.
   2. A transformative use that repurposes or recontextualizes the in-copyright material favors fair use. Examining, analyzing, and explicating the material in a meaningful way to enhance a reader's understanding strengthens your fair use argument. Can you make the point in the thesis without using, for instance, an in-copyright image? If you can, your use of the image may not favor fair use on this factor.
   3. Are you commenting on a judiciously selected quotation you have incorporated in-text because that quotation, together with your commentary, mutually establish or emphasize your point? If you are, your use of the quotation may favor fair use on this factor. 
2. What is the nature of the work to be used?
   1. Published, fact-based content favors fair use and includes scholarly analysis in published academic venues. 
   2. Creative works, including artistic images, are afforded more protection under copyright and may be less likely to favor fair use. This does not preclude considerations of fair use for creative content altogether.
3. How much of the work is going to be used? 
   1. A good rule of thumb is to use only as much of the in-copyright content as necessary to serve your purpose. Smaller or less significant amounts tend to favor fair use. 
      1. Can you use a thumbnail rather than a full-resolution image? Can you use a black-and-white photo instead of color? Can you quote select passages instead of including several pages of the content? These simple changes are more likely to favor fair use on this factor. 
4. What potential effect on the market for that work may your use have?
   1. If there is a market for licensing this exact use or type of educational material, then this weighs against fair use. If, however, there would likely be no effect on the potential commercial market, or if it is not possible to obtain permission to use the work, then this favors fair use on this factor. 

For further assistance with fair use, consult the Office of the General Counsel's Copyright and Fair Use: A Guide for the Harvard Community.

What are my options if I don’t have a strong fair use claim? 

Consider the following options if you find you cannot reasonably make a fair use claim for the content you wish to incorporate:

• Seek permission from the copyright holder. 
• Use openly licensed content as an alternative to the original third-party content you intended to use. Open licenses grant upfront permission for reuse of in-copyright content provided your use meets the terms of the open license. 
• Use content in the public domain. Public domain content is not in-copyright and is therefore free of all copyright restrictions. Whereas third-party content is owned by parties other than you, no one owns content in the public domain; everyone, therefore, has the right to use it. 

For use of images in your dissertation, please consult the Finding Public Domain & Creative Commons Media guide to find images without copyright restrictions.