The Graduate School
Fair Use Guidelines for Dissertations
General
If a work you wish to incorporate into your dissertation is protected by copyright, you may rely on fair use if you follow these guidelines and distribute your dissertation through the University. If you distribute your dissertation through ProQuest (UMI), you should refer to and rely on the guidelines provided at http://www.il.proquest.com/products_umi/dissertations/authors.shtml#copyright. For our purposes, here at The University of Texas at Austin, the following guidelines apply.
Fair Use
Fair use permits educators to make certain uses of others' works for nonprofit educational purposes. The statute does not specify amounts (17 USC 107); rather, it describes a "weighing and balancing" test that one applies to a proposed use to determine whether the use is excused or needs permission from the copyright owner. The test includes 4 parts and each is carefully considered in the process of evaluating a proposed use. First, we consider the nature of the use, whether it is nonprofit and educational or commercial and for-profit. Next, we consider the kind of work you want to use, whether it is factual or creative and fanciful. Then we consider how much of the whole work you will use. Finally, we consider the effect of such a use on the market for or value of the work, if the use were widespread. For more information on how this test works, see Fair Use of Copyrighted Materials at http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm.
The first factor weighs in our favor because we consider a dissertation to be very much like any other educational work. Dissertations are authored by students to satisfy degree requirements. They usually are not professionally edited. They mark the beginning of the student's efforts in a field. Thus, dissertations are nonprofit and educational. The weight of the 2nd, 3rd and 4th factors depends on your proposed use. Small amounts of a work are better than large amounts. Similarly, factual works are easier to justify as fair use than creative and fanciful works. But one of the most important factors is the "market effect" factor, the 4th factor. This factor weighs in favor of getting permission when there is an established permissions market, and in favor of fair use when there is not. For example, it is easy, cheap and quick to get permission to use text materials for educational purposes because the Copyright Clearance Center (http://www.copyright.com/) has established a permissions market for such uses. As a result, the 4th factor will usually weigh in favor of getting permission for text materials. Overall we should use such materials under fair use more judiciously than we might use images, audiovisuals or music, where no such functional market exists and indeed, getting permission is impossible in many cases. In order to demonstrate that no functional market exists for permission for a particular kind of work, you should document efforts to obtain permission and note when there are no licensing alternatives.
It is important to understand that no one factor rules all the others. They interact. That's why if you plan to make more than just passing use of others' works in your dissertation, you really should read Fair Use of Copyrighted Materials (http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm) to get a better understanding.
Direct Quotations
Short direct quotations of modest proportions are usually considered to be fair use. For example, a paragraph or two is probably within the bounds of fair use. For longer quotations, seek the permission of the copyright owner.
Images and Graphics
Our guidance about the use of images and graphics as fair use is affected significantly by the 4th fair use factor. It is often difficult or even impossible to get permission to use images and graphics. This situation is changing in some fields where it is now possible to license databases of good quality images at reasonable prices for nonprofit educational uses. For example, Saskia and other art history image vendors offer educational licenses. If it is easy to license the right to use the images you need, you should do so. But, for images for which a digital source is not readily available, or for which permission is difficult or impossible to obtain, use of images without permission in an educational document like a dissertation is probably a fair use. Again, you should document efforts to obtain permission.
Music and Audiovisuals
The same analysis that we apply to images and graphics (above) applies to music and audiovisuals: if you wish to use reasonable amounts of such works in your dissertation, document your efforts to obtain permission or license the works. If your efforts show that there is no functional market for permission and no functional licensing opportunities, your use will likely be fair use.
Summary
Fair use is not an exact science. There are few absolutes available to help us make decisions about how much of what kinds of works is appropriate to use when we rely on fair use. If you consider the nature of a dissertation as educational and nonprofit, use as little as you can commensurate with making your points effectively, and be sensitive to when there is and when there is not a functional market for permission, your judgments about fair use are likely to be sound.
This document was prepared for the Graduate School by Georgia Harper, Attorney, Office of General Counsel, UT System. Last modified 11/2003.