Another legal way, besides requesting permission, to reuse another’s copyrighted work is through the use of copyright exceptions. These exceptions are built into U.S. copyright law to provide for reuses that are deemed beneficial for society, such as for education or research, to protect certain types of users of copyrighted content, or to fulfill Constitutional requirements such as free speech.
Fair use can apply to any type of work belonging to someone else, be it a journal article, a book, or an image. The same fair use analysis should be applied regardless.
If exception means "In this circumstance, it doesn't apply," then copyright exception means "Though normally all work is protected under copyright, this work's circumstance means you don't have to get permission from the owner."
Examples of copyright exceptions include:
Many copyright exceptions are limited and detailed in their scope.
Fair use is a part of the copyright statute (17 USC 107) that provides a flexible approach to copyright exceptions for a wide variety of useful societal purposes. Such purposes for using fair use include (but are not limited to): criticism, comments, news reporting, teaching, scholarship, and research.
Four factors are used to analyze whether a use is fair use:
Because fair use is a "flexible" application of copyright exception, it can be dangerous. If you decide to use fair use, clearly document your reasoning and store it with the rest of your copyright licenses. This could help protect you against a claim of copyright infringement.
Remember that Fair Use is applied only after considering all Four Factors (described in the next pages). How strongly could each of those Factors support your use of some content? In some cases, it will be clear that Fair Use will not apply to your need.
Before beginning a fair use analysis, check to see if it is already copyright excepted (for example, if it’s in the public domain). In the below example, Fair Use is actually not needed (public domain)--but as you read through this scenario, try to think of alternate ways this professor could share these pictures.
Professor McCullough is preparing to teach an online course on Impressionist painting in which she plans to assign students to view numerous images of paintings from that period. While she was able to find most of the images she will need by using the institution's subscription to ARTstor, there were a handful of paintings that weren't available there. She searched Flickr and found straighforward photographs of some of the missing paintings, but the permissions were set to "all rights reserved." She downloaded the images anyway and placed them in a folder on the Sakai site for the course, figuring students can view them from there. Is this fair use?
There are two potential copyrights involved in this case: the copyright in the paintings and the copyright in the photographs of the paintings.
In the case of the paintings, a fair use analysis is not necessary. The paintings themselves are in the public domain, because they were painted in the 19th century. (If the paintings were still protected by copyright, the professor would need to make case for fair use and would therefore want to be sure to place the photos of the paintings in a transformative context, as opposed to just copying them and placing them in a folder.)
With regard to copyright in the photographs, a federal court ruled in 1999 that a direct, accurate photographic reproduction of a two-dimensional work of art does not have enough originality to qualify for copyright protection. The underlying work of art may be protected by copyright, but not the photograph (Bridgeman Art Library, Ltd. v. Corel Corporation, 36 F.Supp.2d 191). Therefore, Professor McCullough is free to use the photographs she found on Flickr without seeking permission from the photographer or relying on fair use.
If Professor McCullough sought to use Flickr content that was legitimately protected by copyright without making a case for fair use, she could have included links to the images on Flickr in her course materials rather than copying the images by downloading them. Linking to materials is ordinarily not a violation of copyright but rather a technological instruction for locating materials.
Because linking to a material does not create a copy of it, copyright generally does not apply. To decide whether copyright applies in online linking situations, many judges apply the Server Test, which says that a copy of a photographic image is not displayed when it is not fixed in a computer’s memory. In Hunley v. Instagram, the U.S. Court of Appeals for the Ninth Circuit decided that, based on the Server Test, embedding is not a violation of copyright (embedding is a form of linking in which content is hosted by one website, but is incorporated seamlessly in another). The courts remain divided on the Server Test as it applies to pictures and videos, and the U.S. Supreme Court has not yet addressed the issue, but for plain text hyperlinks, the law is clear.