Fair Use Question of the Month: Digitizing Archives of Copyrighted Work

by Patricia Aufderheide

Dear CMSI,

Image by Gail Frederick/Flickr

Image by Gail Frederick/Flickr

I am part of a team in the special collections unit of my university library working on the recently acquired personal archive of a regional artist. We’re hoping to make the correspondence between the artist and various collectors and institutions digitally available. The archive came with a donor’s agreement allowing digital display, but there are a lot of items in the archive that are actually copyrighted to others. So what we want to know is, can we employ fair use here? If so, how?



Dear Felishia,

We suggest that you consult the Code of Best Practices in Fair Use for the Visual Arts to see if your uses are within the best practices of your field. For example, your peers find that institutions “may invoke fair use to create digital preservation copies and to enable digital access to copyrighted materials in their collections, and to make those collections available online,” with certain limitations. They include (among others) providing search tools for the digital display, doing due diligence to avoid violations of privacy or other non-copyright rights of others, making the digital display size appropriate to the use, and giving users a contact for feedback. If you consider these guidelines carefully, you’ll be able to answer your question with confidence.




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