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Using works created by others in your project means that you need to do a bit of research into whether that original work is still protected by copyright. There are three easy steps to determining how best to decide if you can use these works:
Please keep in mind that, in providing further details below, the Library is not providing legal advice, but rather sharing information about how these issues work so that you can make informed decisions. It is also your responsibility to undertake due diligence regarding any other (i.e. non-copyright related) legal restrictions that may apply to the materials’ use and distribution (e.g. privacy and publicity rights).
The creator of an existing work may enjoy protection under the law to the following exclusive rights once their creative work is fixed in a tangible medium:
Copyright does not protect:
A great resource for learning more about the basics of U.S. copyright can be found in the U.S. Copyright Office's Circular 1: Copyright Basics.
Public domain refers to works for which copyright protections have expired, or works that were ineligible for protection from the start. Public domain works are open for use with no permission needed. In most cases he Library cannot make public domain determinations for researchers. For assistance in determining whether a work is in the public domain, the UC Office of the President has provided helpful general rules of thumb in its Public Domain guide.
Additional resources for making a copyright determination:
If the work that you would like to use is not in the public domain, that is that it is still protected by copyright, you may still be able to use the work without permission of the copyright holder if your use is a fair use. You do not need a copyright holder’s permission to publish when the intended use is fair use because United States copyright law contains a limited exception for certain uses such as teaching, scholarship, research, criticism, commentary, and news reporting. It is your responsibility to determine whether the intended use is a fair use. The UC Berkeley Library cannot make a fair use determination for you, or confirm whether your use would be fair.
Evaluating fair use is done on a case-by-case basis for each work that you use, and rests on the following four factors. When considering these factors, keep in mind that the fair use exception is purposefully broad and flexible to promote academic freedom, expression, education, and debate. The four factors are a balancing test, each may push you in one direction or the other, but it is the sum of all four factors that will help you to determine if your use is considered fair.
The factors you need to work through to determine whether your use is a fair use are listed below, but evaluating and applying the below steps are your responsibility; the Library cannot make fair use determinations for you.
|Fair Use Factor||Tip for Applying the Factor|
|The purpose and character of the use, including whether the intended use is commercial vs. for nonprofit educational purposes.||Uses in nonprofit educational institutions are more likely to be fair use than works used for commercial purposes.|
|The nature of the copyrighted work.||Distributing factual works is more likely to be fair use than doing so with creative, artistic works such as musical compositions.|
|The amount and significance of the portion used in relation to the entire work.||Copying smaller portions of a work is more likely to be fair use than larger portions.|
|The effect of the use upon the potential market for or value of the original.||Uses that have no or little market impact on the copyrighted work are more likely to be fair.|
The following questions can help you weigh the outcome of those four factors:
For guidelines on what uses may qualify for the fair use exception, please see:
If you determine that the work is not in the public domain and your use exceeds fair use then you will need to seek permission from the copyright holder.
Finding Copyright Holders: for help locating third-party copyright holder(s), the following resources may assist your investigation:
The University of California Regents (UC Regents) do not hold the copyright to the majority of the materials held in the collection of The Bancroft Library. When copyright is not held by the UC Regents, no permission for publication/use from the Library is required or given. If you intend to publish any material found in the collection of the Library that is still protected by copyright, and you determine that your use exceeds fair use, you are required to obtain permission from the copyright holder. More information about determining copyright status, fair use, and other legal restrictions that may apply can be found below.
The Copyright & Information Policy Specialist can perform a search of the Library's files on the requested material to establish if the UC Regents hold the copyright to the material, or if there is any information about the current copyright holder that can be shared, by emailing information about your requested material to firstname.lastname@example.org. University of California employees cannot offer legal advice (e.g. whether or not your use would constitute fair use) or make a legal determination beyond if the material is © UC Regents. Any further research into copyright and other legal restrictions that may apply is your responsibility and you are solely responsible for complying with all applicable laws.
Please keep in mind that there are several laws and policies outside of copyright that also affect publication permission.