Copyright and Fair Use

Copyright

Article I, Section 8, of the U. S. Constitution gives Congress the power to “Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."  Notice that this is an effort to promote the progress of discovery and communication with protection of authors and creators as a secondary objective.  

Ok, but what is copyright? 

Copyright is a form of legal protection (Title 17, U.S. Code) that provides the creator of an original work limited control over the reproduction and distribution of their work.  The work must be original and fixed in a tangible medium of expression.  Copyright covers both published and unpublished works. 

Copyright gives holders a set of exclusive rights

• reproduce the work, in whole or in part,
• distribute copies of the work,
• publicly perform the work,
• publicly display the work, and
• prepare derivative works based on the original, such as translations or adaptations.

These rights are subject to exceptions and limitations, such as "fair use," which allow limited uses of works without the permission of the copyright holder.

What does copyright protect?

Original works, whether or not published, that exist in a tangible medium that can be touched, seen, heard, read and fall into one of the following categories are protected by copyright.

Copyright applies to a wide variety of works including, but not limited to:

• Literary works
• Musical works including any accompanying words
• Dramatic works including any accompanying music
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Movies and other AV works
• Sound Recordings
• Architectural works, etc.

Items not protected include, but are not limited to:

• Facts or Ideas
• Titles, names, slogans, or short phrases
• Procedure, methods, principles, systems
• Works created by employees of the U.S. Government in the course of their employment
• Works comprised entirely of public domain information or that have passed into the public domain
• Works consisting entirely of information that is common property (standard calendars, tape measures, rulers, lists or tables taken from public documents, etc.) 

Remember: Copyright applies only to fixed, original and creative expression, not the ideas or facts upon which the expression is based.

How do works become copyrighted?

At the moment a work is created and fixed in a tangible form it receives instant, automatic copyright protection. Works do not need to be published or registered to be fully protected by copyright. The © notice is no longer required for works created after 1989.  However, providing a copyright notice may be a good idea if you are making your work publicly available so that people who may want to use your work can contact you for the appropriate permissions.  There are additional advantages to placing a notice of copyright or registering the work in the event of possible litigation that may arise from copyright violations of your work.   

Who owns the copyright?

1. The creator/author of the original work
2. If two or more creators, each holds equal copyright and each have an equal right to exercise and enforce said copyright.

Exception to the rule: Work for Hire

If an employee or employees create a work within the scope of their employment, then the employer is the copyright holder and this work is considered “work for hire.”  Work for hire can also include work specially ordered or commissioned for use if the parties expressly agree in writing that the work shall be considered a work made for hire.  This includes a contribution to a collective work, a part of a move or other AV work, a translation, a supplementary work, a compilation, an instructional text, a test, answer key for a test, and/or an atlas. 

Copyright can also be transferred through licensing and publishing agreements.  

How do I know if something is copyrighted? 

Copyright isn't forever - it applies for a limited term and then expires and the work enters the public domain.  However, depending on when a work was created, it is subject to varying requirements regarding copyright notice, registration, and even different copyright terms.  

• The basic term of protection for works created today is the life of the author + 70 years.
• If the work is created as a "work for hire," then the duration of copyright lasts for either 95 years from publication or 120 years from the creation of the work - whichever is less.
• Generally, works registered or published in the US before 1923 are in the public domain.

Helpful Tools 

Copyright Term and the Public Domain by Peter Hirtle at Cornell.  This is a comprehensive guide to copyright duration to help ascertain a work's current copyright status.  

Another great tool is the Digital Copyright Slider by Michael Brewer, ALA Office for Information Technology Policy - Copyright Advisory Committee.  

Public Domain

A work enters the public domain once its copyright expires or if the creator chooses to put it in the public domain.  You do not need to request permission or pay a license fee to use a work that is in the public domain.  

Best Practice: Even a work is in the public domain, it is still important to provide attribution if the information can be found.

Additional Resources

Disclaimer

The purpose of this guide is informational only and should not be construed as legal advice. It is designed to provide basic, general information about copyright.  This guide does not constitute or supply legal advice nor is it intended to replace the advice of legal counsel. The links to third party sites in this guide are provided for your convenience only.  If you have specific legal questions pertaining to copyright, please seek legal counsel.