Fair Use

Basic Information On Fair Use

Stanford Libraries’ Copyright and Fair Use: Measuring Fair Use - The Four Factors. Explains the Four Factors used to evaluate whether or not a given use falls under fair use. The Stanford Libraries site also provides helpful information on other copyright-related topics, such as how to determine if a work is in the public domain as defined under US law.
Columbia University Libraries’ Fair Use Checklist. A checklist to help authors determine whether their use is fair use, offering examples of factors that weigh in favor of fair use, and against.

DUP Standards Relating to Fair Use

General

Authors should assert fair use whenever possible, and seek permission only when absolutely necessary.
No image or chunk of text “is” fair use, the way it might “be” public domain due to age or other factors. Instead, the question is what an author does with that material -- their use -- and whether or not that use is consistent with the Four Factors.
Regarding the amount that is acceptable to quote under fair use, authors should “take only what they need, but take as much as they need.” That is, authors shouldn’t quote more than is needed to make their points, but they also shouldn’t be afraid to quote as much as they need for their purposes. Put another way, is the amount quoted proportional to your discussion/analysis/etc.?
If a fair use case appears weak or borderline, authors can enhance it by adding more discussion/analysis of the material. Alternately, authors may be able to reduce the amount of quoted material until it’s more proportional to their use.

Textual Excerpts and Quotations

Normal scholarly quotation of prose, poetry, songs, tables, and other text will usually fall under fair use, since authors will discuss and analyze the quoted text in the course of their arguments. Rather than worrying about exact word counts or numbers of lines cited. DUP authors should consider whether their quotations are proportional to what they do with that text.

For instance, if an entire poem or song is included in an article but only a few lines are analyzed, this probably goes beyond what the author really needs. The author should either pare down the quoted material to the relevant portion, enhance their discussion to encompass more of the work, or seek permission to reproduce the entire piece. By contrast, if an author includes an entire poem in their article but does actually discuss the entire poem, this use is likely protected by fair use.

Images

In the majority of cases, fair use principles can justify use of images within articles, as long as the author discusses the images and integrates them clearly into their analysis. This can include discussion in image captions as well as the main text. If an image is being used merely for "decorative" purposes, however, fair use will not apply. If the connection between the author's argument and an image seems to be tenuous, authors can bolster the fair use case by discussing the image more, or in more detail.

When discussing images, including the image as a whole is usually considered necessary and justifiable. Authors should not feel compelled to crop images to enhance their fair use case, as they might use only a few lines of a long poem. Similarly, if an author needs multiple frames from a film or video to support their argument, they should use multiple frames. The same is true for panels of comics, comic strips, manga, and the like.

Epigraphs

For epigraph use to fall under fair use, there should be a strong link between it and the main text:

Articulated link - the epigraph is directly discussed in the main body of the article.
Readily articulable link - an average reader would, without any strain, be able to infer a clear connection between the epigraph and the main text.

If an epigraph is purely “decorative,” setting the tone or serving as a form of “inspiration,” the use will probably not qualify as fair use, and permission should be sought.

Unpublished Material

Authors can assert fair use for unpublished material, such as quotations from a writer’s unpublished diaries held in an archive. The section of the copyright act defining fair use explains that “the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all [the Four Factors].” In other words, if a use of unpublished material would qualify as fair use if the material had been published, then the use is probably fair use.