The sections below discuss the use of third party materials in your dissertation, and how to weigh the factors that favor or disfavor Fair Use. To learn more about copyright considerations in your dissertation, please refer to the our Guide to Copyright for Dissertations.
If you use materials (such as text, images, sound recordings, etc.) created by a third party in your dissertation, you need to consider whether copyright law allows your use of those materials. In some cases, even reusing your own published articles can raise copyright concerns, if you have transferred your copyright to someone else, like your publisher. Even when copyright permits your use of a work, contract law may prevent it. When you agree to terms of use in order to gain access to a copy of a work (such as a letter in an archive or a newspaper article in an online database), those terms also control what you can do with the work.
You can proceed without copyright permission if you are using something that is not copyrightable or is in the public domain. You also don't need permission if you are using it in a way that does not implicate one of the rights of copyright holders or is permitted by a user’s right, such as fair use. If none of these circumstances applies, you need a license to use the work. In some cases, an existing license may cover your use. In others, you will need to get a new license from the copyright holder. For more information on these subjects, please see our Copyright Basics and Obtaining Copyright Permissions guides.
In addition to the copyright issues, it is also vital to follow attribution norms within your discipline. For more information about the distinction between plagiarism and copyright infringement, see below.
Fair use allows certain uses of copyrighted material without permission from the copyright holder. There are four factors to consider when determining whether your use is a fair one. You must consider all the factors, but not all the factors have to favor fair use for the use to be fair. The outline below explains how the fair use factors and their subfactors apply to using third-party material in a University of Michigan dissertation.
Uses that fall under one of the favored purposes listed in the fair use statute (17 U.S.C. § 107) or have a nonprofit educational purpose will weigh in favor of fair use. Favored purposes include scholarship, research, criticism, and comment. Since uses in dissertations often have these purposes, this subfactor favors fair use.
Uses that are commercial weigh against fair use. Most uses in dissertations are not for commercial purposes, but that may change if you publish your dissertation with ProQuest or another commercial entity.
Uses that are transformative weigh in favor of fair use. A use is transformative when the use adds new meaning or message to the original work, giving it a new purpose. For example, imagine you are writing your dissertation about the impacts of advertising directed to children. You include a toy advertisement and analyze how it reached a child audience. The original purpose of the advertisement was to increase demand for the toy, while your purpose is for scholarship and critique, making your use transformative. Quoting another scholar's analysis of the advertisement would not necessarily be transformative, though it is still often fair use.
If the work used is creative, that will weigh against fair use. If the work used is factual, that will weigh in favor of fair use. The outcome of this subfactor varies depending on the work used.
If the work used is unpublished, that will weigh against fair use. However, the fair use statute explicitly states that the unpublished nature of a work will not bar fair use if the use is otherwise fair. The outcome of this subfactor varies depending on the work used.
Using all or much of the original work will weigh against fair use. The outcome of this subfactor varies depending on the use.
Using the most important part of the original work (the "heart") will weigh against fair use, even if it is only a small amount of the work. The outcome of this subfactor varies depending on the use.
The third factor is neutralized if the amount used is necessary for a transformative purpose, even if the entire original work is used. For instance, the third factor would be neutralized in the use of the toy advertisement described above — all of the advertisement has to be used in order to achieve the transformative use.
Uses that decrease demand for the original work by providing a substitute will weigh against fair use. In many cases, using a work in your dissertation will not provide a substitute for the original work, but the outcome of this subfactor can vary depending on the use.
Uses that decrease demand for the original work by criticizing it (as with a negative film review) have no impact on the fourth factor.
If the licensing market for the use you are making is "traditional, reasonable, or likely to develop," that will weigh against fair use.