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COPYRIGHT, FAIR USE, AND THE TEACH ACT
The images contained in the Art and Art History Visual Resources Digital Image Collection and in many other online sources are protected by copyright. Sections 107 through 118 of the Copyright Act provide exceptions to the exclusive right of copyright owners to reproduce or to authorize others to reproduce their work.  One of these is “fair use.”  Section 107 contains a list of circumstances in which reproducing a copyrighted work may be “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research.

Section 107 also sets out four factors to be considered by courts of law in determining whether the fair use exemption applies:

• the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• amount and substantiality of the portion used in relation to the copyrighted work as a whole;
• the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between fair use and infringement can be difficult to define. There is no exact number of copyrighted images, words, notes, etc. that may safely be copied without permission.  Citing sources does not substitute for permissions from copyright holders.  Educational use does not grant the right to unlimited reproduction of copyrighted materials – the courts examine all four fair use factors.  In the reproduction of copyrighted materials for educational use, the effect on the market or the potential market is especially important to consider, as is restraint concerning the amount and substantiality. Images of cultural objects can involve two layers of copyright protection: that of the owner of the underlying work, and that of the owner of the image depicting that underlying work.  While the underlying work may be in the public domain, a photograph of it may simultaneously be protected by copyright.  One should not digitize images that are available commercially in digital form.  Nor should one digitize slides purchased from vendors or museums without obtaining permission first (there is usually a condition of sale prohibiting such copies, which supersedes the fair use exemption).  It is imperative that access to commercial and fair use images be limited to the CU community, preferably to students enrolled in the course for which the materials are being used (e.g., classroom display and protected web sites only).

Questions about the use of copyrighted materials in University work that are not otherwise addressed on this site can be forwarded to Joanne M. McDevitt, Associate Vice President, System-wide Management Training and Compliance Officer, University of Colorado.

The University of Colorado at Boulder has created its own guide to copyright.  It includes overview of copyrighting your own work, file sharing, fair use, the TEACH Act and other useful information.

The US government's Copyright Office provides a basic overview of copyright and fair use.

Stanford University Libraries has created a comprehensive overview of copyright law and fair use guidelines.  It includes links to US government web pages, current legislation addressing these issues, and critical commentary on current law.  The pages on fair use and the TEACH Act will be of particular interest to educators and students.

Creative Commons is a non-profit organization working to provide innovative solutions to sharing information legally.