Before you use an image it is very important to consider if your intended use would be considered copyright infringement. While properly citing an image for use in a publication, on a website, for a presentation, etc. would avoid plagiarism, you still might not be allowed to use the image based upon the author’s copyright terms.
What is copyright? According to the US Copyright Office:
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
Copyrighted works can include digital and non-digital works, such as images, music, literary works, artistic works, and many other artistic and intellectual materials. Copyright does not cover things such as facts, or ideas that have not yet been put in tangible form.
The sections below provide guidance and considerations for how to reuse images:
Fair use, which is included in the US Copyright Act, allows you to reuse copyrighted material without having to ask for permission. It is based upon four factors that are used by the courts to determine if fair use is justified and does not infringe on copyright. Keep in mind that when the courts determine fair use, they look at the four factors holistically, so it is important not to rely on only one factor when determining fair use. The four factors include:
Are you using the copyrighted work for nonprofit educational use? Or is the use meant to be for commercial purposes? Other purposes of use could also include parody, commentary and criticism, and other transformative purposes. Educational uses are viewed favorably, but make sure to consider the other fair use factors as well.
Is the work factual or creative? Factual works tend to be more favorable for fair use compared with creative works. Is the work you are wishing to use published or unpublished? Your reuse of a published work leans more towards fair use than an unpublished work, since the original creator has the right to the first appearance of the work.
With this factor, consider the quantity and quality of the work you wish to reuse. How much of the work are you using? The less you use, the more likely it is to be fair use. However, even if you use a small portion of the work, is it “the heart” or a very important part of the work?
For images: if you need to reuse the entire image and not a portion of it, try using a thumbnail or a low-resolution version. Courts have ruled this to be an example of using an image in a smaller quantity.
Does the unlicensed use of the work effect the market? For example, would the use of the copyrighted work take income away from the author? Or, could you have realistically purchased or obtained the right to use the copyrighted material?
Check out the Fair Use Evaluator to learn more about fair use, and if your intended use of a work or an image could be considered fair use.
There are six types of Creative Commons licenses. Works that have these licenses provide a standardized way to grant individuals and institutions permission to use the works under copyright law. You can read about the six types of license on the Creative Commons website, as well as see a brief description below.
The six different license types are listed from most to least permissive:
BY: credit must be given to the creator.
BY: credit must be given to the creator.
SA: Adaptations must be shared under the same terms.
BY: credit must be given to the creator.
NC: Only noncommercial uses of the work are permitted.
BY: credit must be given to the creator.
NC: Only noncommercial uses of the work are permitted.
SA: Adaptations must be shared under the same terms.
BY: credit must be given to the creator.
ND: No derivatives or adaptations of the work are permitted.
BY: credit must be given to the creator.
NC: Only noncommercial uses of the work are permitted.
ND: No derivatives or adaptations of the work are permitted.
Yours Truly, E.W. Kemble, 1884. From The Adventures of Huckleberry Finn by Mark Twain.
Works that are in the public domain are not protected by copyright and can be used by anyone for any purpose. Works can become a part of the public domain if their copyright expires, if the copyright was not renewed, if the work was intentionally placed in the public domain by the author, or if a work does not qualify for copyright (i.e., facts, ideas, and theories).
Works that were published before 1924 are in the public domain and can be used without permission. For works that were created after 1977, copyright will expire 70 years after the author’s death.
Do you still need to cite an image that is free from copyright and in the public domain? Yes! If you did not create the image you must provide a citation, even if it is in the public domain to avoid plagiarism. You will want to include the following information:
Format the information above according to the citation style that you are using.
Attribution must be provided for all images used, whether the image is copyrighted or public domain. Attributions for images should contain the following elements:
Example of an image with an attribution below:
Ebola Virus Particles by NIH Image Gallery (2015) is licensed under CC BY-NC 2.0
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