Copyright Primer

What Is Eligible for Copyright Protection?

To be copyrightable, a work must be both:
  • original, and
  • fixed in any tangible medium of expression.
Works include:
  • literary works;
  • musical works, including any accompanying words;
  • dramatic works, including any accompanying music;
  • pantomimes and choreographic works;
  • pictorial, graphic, and sculptural works;
  • motion pictures and other audiovisual works;
  • sound recordings; and
  • architectural works.
Originality
Originality implies creativity. For example, the content and the layout of most websites are copyrightable. On the other hand, a digitizer of a 19th century art work is less likely to be able to claim copyright, as the digitized format is probably true to the original and so cannot claim originality. So too, a publisher of an anthology of works can less likely claim copyright of previously published content. The footnotes, prefatory remarks, and the arrangement of the anthology are all copyrightable, but any borrowed content may well be copyrighted by someone else, or may be in the public domain. If copyrighted, permission must be obtained from all copyright owners.
Fixed in a Tangible Medium
Fixation can include everything from comments scribbled on a piece of paper, to emails, to blogs, to recorded music, to videotaped plays and paintings and sculpture. For a work to be considered "fixed," it needs to be perceivable directly by the naked eye or by a machine or device such as a computer or projector.

For additional reading on this subject, consult Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, by Kenneth D. Crews. Available in Trexler Library, call # Ready Reference 346.730482 C927c 2006


When Do Works Pass into the Public Domain or Are Otherwise Unprotected?

Consult this chart from Cornell University, Copyright Term and the Public Domain. Be careful to distinguish between works published in the U.S. and those published abroad. It should never be assumed that works have passed into the public domain because the copyright appears to have expired. Some states have recognized the rights of authors even after copyrights have expired.

For additional detail about when works pass into the public domain, see the book The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More, by Stephen Fishman, available at Trexler Library call # Ready Reference 346.0482 F537p.

Additionally, copyright protection is not generally afforded to:


How Do I Determine If My Use Is a Fair Use?

Books and Journals

Assess your use of copyrighted material with the Four Factor Fair Use Test or the Fair Use Checklist, considering in particular:

  • Purpose: Will your use be non-profit and educational? Have you taken steps to ensure that only students registered in your course will have access, and then only to the material that they need to use?
  • Nature: Is the material of a factual nature? News? Science? Creative works like fiction are more susceptible to claims of infringement.
  • Amount: Are you using a small amount per journal issue or book as opposed to many pages or even the entire work? If more than a single excerpt is to be used over time, count all excerpts together. Shorter excerpts from works are more likely than longer pieces to be within fair use. Consider this in light of the nature of the work being used (creative vs. factual) and also consider the amount strictly needed for the educational purpose at hand.
  • Effect: Are you making direct inroads on the potential market (including licensing market) for a work? A clear effect on the market weighs against fair use. Textbooks are especially sensitive here. Remember too that out-of-print does not mean out-of-copyright. One way to minimize market effect is to limit access only to students registered for a specific course, and limit the ability of students to redistribute the work. Consider the various purchasing and licensing options available to you. Would it be reasonable to ask the students to purchase the work, or perhaps pay a licensing fee to access the work? The amount used will certainly play a role here as well. 
Videos

Assess your use of copyrighted material with the Four Factor Fair Use Test or the Fair Use Checklist, considering in particular:

  • Purpose: Will your use be non-profit and educational (as opposed to entertainment)? Have you taken steps to ensure that only students registered in your course will have access to the material?
  • Nature: Videos are typically considered creative works, rather than factual. This makes a claim of fair use more challenging.
  • Amount: Showing entire videos in face-to-face teaching in a scheduled class is expressly protected by copyright law, as long as the copy has been legally obtained. If you will be posting to the web, amount quickly becomes the issue: short clips of films favor fair use.
  • Effect: If moving beyond the physical classroom, to the web, or to a broader public audience for entertainment purposes, consider the various licensing options available to you, especially for viewing of full-length videos as opposed to short clips. Posting videos on websites is ordinarily considered a commercial use.
Audio

Assess your use of copyrighted material with the Four Factor Fair Use Test or the Fair Use Checklist, considering in particular:

  • Purpose: Will your use be non-profit and educational? Have you taken steps to ensure that only students registered in your course will have access to the material?
  • Nature: Remember that creative works like music or dramatic readings are more susceptible to claims of infringement.
  • Amount: Listening to recordings in the physical classroom from legally obtained copies is never a problem so long as listeners are not charged. However, if you wish to post to the web, consider that short clips of a work favor fair use, as opposed to the entire work. Some professors rely on guidelines created by the Music Library Association that suggest that entire musical works can be made available for teaching purposes over the web, restricting access to students registered for a specific course. Perhaps you can limit the likelihood of redistribution by streaming. Consider all this in light of the nature of the work being used (creative vs. factual) and also consider the amount needed for the educational purpose at hand.
  • Effect: Are you making direct inroads on the potential market (including licensing market) for a work? A clear effect on the market weighs against fair use. Consider the various licensing options available to you. Consider streaming to curtail redistribution. Keep in mind that copyright owners of music and dramatic material are acting aggressively to protect their copyrights.
Images

Assess your use of copyrighted material with the Four Factor Fair Use Test or the Fair Use Checklist, considering in particular:

  • Purpose: Will your use be non-profit and educational? Have you taken steps to ensure that only students registered in your course will have access to the material?
  • Nature: Remember that creative works like photography or painting are more susceptible to claims of infringement by the copyright owner.
  • Amount: If making copies of art work yourself to show in share with class or post to the web, consider that fair use always favors small amounts, such as a few photographs from a collection as opposed to the entire work. Restrict access to students registered for the course.
  • Effect: Are you making direct inroads on the potential market (including licensing market) for a work? A clear effect on the market weighs against fair use. Consider the various licensing and purchase options available to you. If licensing, abide by the terms of the contract. When licensing these works, be sensitive to the scope of the license granted. For example, a license to place in the school paper does not confer the right to use on the web.
Multimedia Projects (created by you or your students)

Assess your use of copyrighted material with the Four Factor Fair Use Test or the Fair Use Checklist, considering in particular:

  • Purpose: Will your audience be non-profit and educational, with access limited to campus or to attendees at an academic conference? Making your project available to the general public runs counter to fair use.
  • Nature: Remember that creative works like photography or musical recordings are highly susceptible to claims of infringement by the copyright owner.
  • Amount: Consider that fair use favors small amounts, such as a few photographs from a collection as opposed to the entire work. Sampling copyrighted audio material is rarely considered fair use.
  • Effect: Again, publishing your project to the general public runs counter to fair use. Consider asking permission of copyright owners at that point.
Software
  • Use of commercial software is rarely fair use.
  • Most software is distributed subject to a license and use without a license is copyright infringement.
  • Use of software not authorized by a license may also constitute infringement.
  • Consider the various licensing and purchase options available to you. If licensing, abide by the terms of the contract.

For more guidance on conducting a fair use analysis, consult this work: Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, by Kenneth Crews, available in Trexler Library at call # 346.730482 C927c 2006.


What is the "Good Faith Defense"?

There is one special provision of the law that allows a court to refuse to award any damages at all if it so chooses, even if the copying at issue was not a fair use. It is called the good faith fair use defense [17 USC 504(c)(2)]. It only applies if the person who copied material reasonably believed that what he or she did was a fair use."


Linking to a Fair Use Rationale

One way to highlight a fair use on the web is to link from the bottom of the page where an image or video has been used to a fair use rationale. Here is an example: "Copyright Sony Corporation Entertainment. Fair Use Rationale."