Answered By: Emily Vinson Last Updated: Nov 19, 2018 Views: 4
Out of print doesn’t necessarily mean out of copyright. In deciding if you can legally use the figures in question, your first step will be determining if the book is still protected by copyright. The book’s publication date can give you clues about the term of copyright & requirements that applied at time of publication. If the book was published before 1923, it is in the public domain and you may use freely from it. If it was published after that date things get more complex. The Copyright Team recommend using the Copyright Advisory Network’s Public Domain slider (http://librarycopyright.net/resources/digitalslider/) for help determining the book’s copyright status. For certain publication dates, you may also need to determine if the copyright has been renewed. You can use Stanford University’s Copyright Renewal Database (https://collections.stanford.edu/copyrightrenewals/bin/page?forward=home) to help you determine if a renewal is on file, and when the term of protection ends.
If you determine that the book is still protected by copyright, in order to use the figures you’ll need to either rely on fair use or obtain permission from the copyright holder. In general, a determination of fair use relies on weighing four factors: the purpose of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market. There are some great tools that can help you to think through the fair use factors. We recommend Thinking Through Fair Use, a resource from University of Minnesota Libraries (https://www.lib.umn.edu/copyright/fairthoughts) that walks you through the four factors and helps you determine how likely it is that your proposed use is fair, and The Fair Use Evaluator (http://librarycopyright.net/resources/fairuse/), a similar tool that walks you through the evaluation and produces a written analysis at the end. This written record might be useful to provide to your publisher in the event you decide your use of these figures is a fair use.
Getting permission to use a work is always the safest course of action. That doesn’t necessarily mean that it is the only course of action or even the best one. However, if you want to be 100% sure that your use will not ruffle any feathers, permission is the way to go. If you decide that your use is not likely to fall under fair use, or if you decide to get permission just to be safe, Stanford University has a great guide on getting permission (http://fairuse.stanford.edu/overview/introduction/getting-permission/). With copyright, very little is black and white. One thing to bear in mind with all of the above is that we’ve answered based on the assumption that the figures you want to use were originally created as part of the book in which you’ve found them. If this is not the case – if the figures were originally published elsewhere and then reproduced in this book – then your analysis will be based on the figures themselves as individual works, and you’ll rely on their original publication date as you begin your analysis.
We hope that this is a helpful overview of the considerations that will come into play in regard to using these figures in your published work. If you’d like more specific information or help to navigate any part of the process, please feel free contact the UH Libraries Copyright Team. For legal advice, please consider consulting with an attorney specializing in intellectual property.