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Fair Use Question of the Month: Is Public Domain a Part of Fair Use?

In this month's fair use question an author explores fair use and public domain in his push to publish a book that uses several long quotes.

Civil War Photograph from the National ArchivesDear CSM,

I’m writing a book that examines the prose of notable American authors published before and directly after the Civil War.  I’d like to quote, in some
cases, several pages. I'm afraid that might exceed permitted quotes--I thought I understood that 400 words is the maximum. Can you help?

Best, Tom 

Dear Tom,

Interesting project! You seem to be confusing fair use with public domain. Work is in the public domain if it is no longer under copyright protection, or does not quality for copyright protection. It's free for use.  

Your authors' work is probably in the public domain, unless you are working with a new editionCivil War Photograph from the National Archives has been independently copyrighted. Here's a table that helps you understand when works falls into the public domain. 

Fair use under copyright allows use of copyrighted materials in the creation of new works, typically when the use is transformative (not the same as the existing market) and the appropriate amount. It exists to foster cultural development. The Center has guided the creation of several codes of best practices in fair use. You may be particularly interested in the codes created by communication scholars, film scholars, and poets. All of them have been used to show publishers that publishing textual excerpts, images and even (in the case of e-books) multimedia without permissions, when fair use applies, can be done. You may also want to read Reclaiming Fair Use, which describes the evolution and the logic of fair use more generally.