What is copyright?

Copyright is part of U.S. federal law that covers various forms of “intellectual property.” When a work is copyrighted, the author has certain legal rights giving him or her exclusive authority over when and how that work can be copied, distributed, performed, or recorded. Copyright may protect any of the following works of authorship:

Copyright protection applies only if a work is “fixed in a tangible medium of expression,” such as a written document, sound recording, painting, film, photo, or software program.  The medium may be electronic, such as a computer file, an e-mail, or a Web page.

For works created after 1977, it is not necessary for a copyrighted work to be registered with the U.S. Copyright Office or to bear a copyright notice in order for it to be protected by copyright, as long as it is an original work of authorship fixed in a tangible form.  For example, a poem is protected by copyright whether it is handwritten on a napkin, typed on a page, or stored on a computer.  In the case of a sculpture or other artwork, the work’s tangible form might be stone, clay, metal, canvas and paint, film, etc.

Some works cannot be copyrighted, even if they are fixed in a tangible form. Lists, tables, and representations of factual data cannot be copyrighted. Ideas cannot be copyrighted. Titles, short phrases (like slogans), and names cannot be copyrighted either, although sometimes they may be protected by trademark law.

Copyright also applies to “derivative works.” For example, a movie based on a novel would be a derivative work. Only the author of the novel would have the right to prepare or authorize a screen adaptation of the story. Parody is not considered to be a derivative work, so it is not necessary to obtain permission from a copyright holder before creating or performing a parody of that author’s work.

Copyright is a complex area of law, and the above is just a brief overview.  The following Web sites go into more detail:

 

 

How Long Does a Copyright Last?

For works created in the year 1978 and after, copyright protection exists from the moment the work is fixed in tangible form and lasts for the span of the author’s lifetime plus 70 years. After that, the work is considered to be in the “public domain,” and copyright protection no longer applies.

Works published before 1923 are in the public domain. For example, the novel Oliver Twist was published in 1837, so it is now in the public domain. That means anyone can make or publish copies of it without violating copyright.  Van Gogh’s painting Starry Night, painted in 1886, is also in the public domain, and therefore can be copied. For example, a company might reproduce and sell posters of Starry Night without any special permission.

Works created or published from 1923-1977 have varying rules. The following two tools make it easy to find out duration of copyright for works produced during that time frame:

Works by the U.S. Government or by its employees as part of their work are in the public domain.


What is Copyright Compliance?
Copyright compliance means that any person who wishes to copy, distribute, or perform a copyrighted work or portion of a copyrighted work has either:

  1. Obtained permission from the copyright holder, or
  2. Determined that permission is not necessary because the use falls within the parameters of “Fair Use.”

Copyright infringement is a failure to comply with copyright law. It a crime that is punishable by fines and prison terms.


What is Fair Use?
"Fair Use" is a provision of copyright law that allows us, under some circumstances, to use copyrighted material without first obtaining the author’s permission.  Fair Use is intended to balance the rights of copyright holders with the interests of the general public.

Four factors are used to determine fair use of a work:

  1. The purpose of the use
  2. The nature of the copyrighted work
  3. The amount of the work used
  4. The effect on sales of the copyrighted work

Before using a work or portion of a work without obtaining permission, it is important to make a "good-faith" analysis of how these four factors apply to your situation. Failure to show good-faith may weigh against a claim of fair use in a court of law. All four factors must be considered and weighed, but there is no clear-cut formula for applying them. The table below describes more specifically what kinds of uses favor a claim of fair use, and those that do not. Even if one factor seems to weigh in favor of fair use, there may be other factors that weigh against your use without the author's permission. For example, you may be using the material for educational purposes, but on the other hand this use may inhibit sales of the work. In such a case, it would be wise to obtain the author's permission.


Purpose

Favors fair use:

-Used for teaching, including multiple copies for classroom use

-Used for research, news reporting, criticism, comment

-Transforms nature of the work

Weighs against Fair Use:

-Used for commercial purpose
-Results in profit
-Used for entertainment
-Distributed to public
-Authorship not attributed
-"Bad-faith" behavior
 


Nature of Work

Favors fair use:

-Published work
-Factual or non-fiction in nature
-Important to educational objectives
 

Weighs against Fair Use:
-Unpublished work

-Creative work
-Consummable (e.g. an exercise book that a student writes in)
 


Amount Used

Favors fair use:
-Small excerpt, generally less than 10% of whole

-Portion used is not central or significant to the whole
-Amount used is appropriate for educational purpose
 

Weighs against Fair Use:
-Large excerpt or entire work

-Use of “the heart” of the work


Market Effect

Favors fair use:
-User owns lawfully purchased or acquired copy of original work

-Few copies made
-Stimulates market for the work
-No significant effect on market or potential market for the work
-No similar product marketed by copyright holder
-No licensing mechanism in place for the work

Weighs against Fair Use:
-Could replace sale of copyrighted work

-Impairs market or potential market for copyrighted work
-Repeated use, when market exists for the work
-Licensing mechanism in place for obtaining copies or rights
-Affordable permission available for use of work
-Numerous copies made
-Repeated or long-term use
-Made work accessible on Web or other public forum
 

 


If Fair Use Does Not Cover My Use, How Do I Get Permission from the Author?
If you are not confident that your use would favor a claim of fair use, then it is necessary to get permission from the author (or author’s agent) before you use the material. Some authors may freely grant permission to use the material as described. Others may offer permission but charge a royalty fee. Royalty fees can vary widely depending on the material and the intended use. Some authors may deny permission.

An excellent guide to the process of obtaining permission—including letter templates—is provided by