The Fundamental Principles of Copyright
Copyright law applies to nearly all creative and intellectual works
For a work to be protected by copyright law, it must be an idea that has been expressed and fixed in some sort of medium. The expression has to be original. To be considered original, there must be a “modicum of creativity” in how it has been expressed. In other words, once you create an original work, and fix it on paper, in clay, or on the drive of your computer, so that the work can be reproduced in some format, then the work is considered copyrightable. Therefore, copyright law protects a wide and diverse array of materials. Books, journals, photographs, works of visual art and sculpture, music, sound recordings, computer programs, websites, film, architectural drawings, choreography and many other materials are within the reach of copyright law. If you can see it, read it, hear it, or watch it, it likely is captured by copyright.
Works are protected automatically, without copyright notice or registration
Copyright protectable works receive instant and automatic copyright protection at the time that they are created. U.S. law today does not require placing a notice of copyright on the work or registering the work with the U.S. Copyright Office. The law provides some important benefits if you do use the notice or register the work, but you are the copyright owner even without these formalities.
The Meaning of Copyright Ownership
Owners hold specific rights, but not all rights
The law grants to copyright owners a series or bundle of specified rights:
- Reproduction of works
- Distribution of copies
- Making of derivative works
- Public performance and display of works
- In addition, certain works of visual art have moral rights regarding the name of the artist on the work, or preventing the destruction of them.
- Copyright owners may also have rights to prevent anyone from circumventing technological protection systems that control access to the works.
In addition, certain works of visual art have moral rights regarding the name of the artist on the work, or preventing the destruction of them. Copyright owners may also have rights to prevent anyone from circumventing technological protection systems that control access to the works.
The author is the first copyright owner
As a general rule, the initial owner of the copyright is the person who does the creative work. If you wrote the book or took the photograph, you are the copyright owner.
Exceptions to the rule: creating a work on someone’s behalf
If you created the work as an employee, acting within the scope of your employment, then the copyright owner is your employer. In addition, if you are a freelancer, and where your contract specifies that you have created a work as a “work made for hire.” then the first owner of the copyright is the person that contracted you to create it.
Copyright can be transferred
Copyright owners can give or sell their rights to others. Even in cases of employment or where a copyright protected work was created as a “work made for hire,” copyright can be assigned or transferred back to the author. In addition, rights can be transferred temporarily by contract. These contracts are often called licensing agreements. A recipient of right by way of licensing agreement only has the ability to exercise those rights that are specified directly in the agreement. At the end of the life of the licensing agreement, those rights revert back to the copyright owner.
Copyright and publishing agreements
In an academic setting, we are frequently asked to transfer copyright in our books and articles to publishers. It is not a requirement of publication that rights be assigned or transferred permanently to a publisher. The right to publish can be licensed to the publisher temporarily or on a non-exclusive basis. The ability to transfer or retain our copyrights is an opportunity to be good stewards of our intellectual works and maintain our intellectual legacy.
The basic term of protection for works created today is for the life of the author, plus seventy years. In the case of "works made for hire," copyright lasts for the lesser of either 95 years from publication or 120 years from creation of the work. The duration rules for works created before 1978 are altogether different, and foreign works often receive distinctive treatment. Not only is the duration of copyright long but the rules are fantastically complicated. Below you will find links to a number of resources to assist in guiding you through a copyright duration question.
Copyright owners may allow public non-exclusive uses
A copyright owner may grant rights to the public to use a protected work. That grant could be a simple statement on the work explaining the allowed uses, or it may be a selection of a Creative Commons license. Similarly, the movement to make works "open access" or "open source" is a choice by the owner of rights to make works available to the public.
The public domain
Some works lack copyright protection, and they are freely available for use without the limits and conditions of copyright law. Copyright eventually expires too. When a work lacks copyright protection or where copyright has expires, it is said that the work enter the public domain. Works produced by the U.S. government are not copyrightable. Copyright also does not protect facts, ideas, discoveries, and methods.
Fair Use and Permitted Uses
Activities within fair use are not infringements
Fair use is not an infringement of copyright. It allows under certain conditions a person to use copyright protected material without permission. Fair use is an important right to use copyrighted works at the university. Fair use can allow us to clip, quote, scan, share and make many other common uses of protected works. But not everything is within fair use. Fair use depends on a reasoned and balanced application of four factors: the purpose of the use; the nature of the work used; the amount used; and the effect of the use on the market for the original. A more in-depth discussion of fair use may be found here.
Fair use is one of many statutory rights to use copyrighted works
Fair use is encoded in the U.S. Copyright Act, which also includes many other provisions allowing uses of works in the classroom, in libraries, and for many other purposes. These statutes, however, are highly detailed, and the right to use works is usually subject to many conditions and limitations.
Uses are also allowed with permission
If your use of a copyrighted work is not within one of the statutory exceptions, you may need to secure permission from the copyright owner. A non-exclusive permission does not need to be in writing, but a signed writing is almost always good practice. The permission may come directly from the copyright owner, or through its representative agent or copyright agency.
U.S. copyright law applies to domestic and foreign works
In general, the same principles of copyright under the domestic law of the U.S. (or of another country) apply to a work, whether the work originated in the U.S. or elsewhere. Under major multinational treaties, many countries have agreed to give copyright protection to works from most other countries of the world. Because the U.S. has joined such treaties, you should apply U.S. copyright law to most works, regardless of their country of origin. For a more in-depth discussion of copyright and foreign works, you can refer to Special Cases.
Using Copyrightable Material
Can I Use That? An Outline.
- Is the work covered by copyright?
- Is your intended use already permitted?
- Is there a © exemption or exception for your use?
- Is there a library subscription for your use?
- Is the work available under a Creative Commons license or other open license?
If YES to ANY of these questions, copyright is an issue, but your use may be legal.
If NO to all of these questions, go on to question 3.
- Is your intended use a Fair Use?
- Have you seriously examined all four factors and other relevant issues?
If NO, go back and do that. (Check out the Fair Use Checklist by Columbia University Libraries for more help.)
- Having examined all four factors and other relevant issues,
If you concluded that your use is likely to be a fair use, then your use may well be legal.
If you concluded that your use is NOT likely to be a fair use, then seek permission.
- Have you seriously examined all four factors and other relevant issues?
If you seek permission, and it is denied, consider revising your planned use, using a different work, buying legal copies for your use, or seeking further legal advice.
You are always welcome to contact the firstname.lastname@example.org for further information about use questions, and we may be able to help you understand some of the relevant issues outline above. However, conclusive answers about copyright use issues are rare.
You can download a PDF map of use issues here.
Fair Use Explained
Understanding Fair Use
Fair use is an important part of copyright law that provides some flexibility for users and new creators. At its core, fair use ensures that there are some kinds of uses that do not require permission or payment. But there are no easy rules for fair use - if you want to take advantage of its flexibility, you have to understand its complexities!
Although there are other exceptions to the far-reaching rights of copyright holders, most of those exceptions only apply in very limited circumstances. Fair use is much more flexible, but also much harder to understand and apply. To understand fair use, you need to be familiar with the four statutory factors, and the idea of "transformativeness". To think through whether a particular use is a fair use, you have to look at these details and other associated issues as a whole. Even then, fair use is unpredictable enough that the best anyone can do is make a well-informed, reasonable guess.
Each possible use of an existing work must be looked at in detail and the law spells out several factors that determine whether a use is fair. No one factor is decisive—you always have to consider all of them, and some additional questions. Even after considering all relevant issues, the result is usually in impression that a particular use is “likely to be fair” or “not likely to be fair.” There are rarely definitive answers outside of courts.
1. Purpose and Character of the Use
This is the only factor that deals with the proposed use—all the others deal with the work being used, the source work. Purposes that favor fair use include education, scholarship, research and news reporting, as well as criticism and commentary more generally. Non-profit purposes also favor fair use (especially when coupled with one of the other favored purposes.) Commercial or for-profit purposes weigh against fair use, which leaves for-profit educational users in a confusing spot!
One element of this factor is whether the work is published or not. It is less likely to be fair to use elements of an unpublished work, which makes sense, basically; making someone else's work public when they chose not to is not very fair, even in the schoolyard sense. Nevertheless, it is possible for use of unpublished materials to be legally fair.
Another element of this factor is whether the work is more "factual" or more "creative:" borrowing from a factual work is more likely to be fair than borrowing from a creative work. This is related to the fact that copyright does not protect facts and data. With some types of works, this factor is relatively easy to assess: a textbook is usually more factual than a novel. For other works, it can be quite confusing: is a documentary film "factual" or "creative"—or both? What about the annual "Dance Your Ph.D." contest?
Uses from factual sources are more likely to be fair than uses from creative ones - though not every source is easily classified!
3. Amount and Substantiality of the Portion Used
Using proportionately smaller amounts is usually more likely to be fair
This is an element that many guidelines give bad advice about. A use is usually more in favor of fair use if it uses a smaller amount of the source work, and usually more likely to weigh against fair use if it uses a larger amount. But the amount is proportional! So a quote of 250 words from a 300-word poem might be less fair than a quote of 250 words from a many-thousand-word article. Because the other factors also all come into play, sometimes you can legitimately use almost all (or even all) of a source work, and still be making a fair use. But less is always more likely to be fair.
This element asks, fundamentally, whether you are using something from the "heart" of the work (less fair), or whether what you are borrowing is more peripheral (and more fair). It's fairly easily understood in some contexts: borrowing the melodic "hook" of a song is borrowing the "heart"—even if it's a small part of the song. In many contexts, however, it can be much less clear.
Borrowings from the heart of a work are usually less likely to be fair than borrowings of peripheral elements
4. Effect of the Use on the Potential Market For or Value Of the Source Work
This factor is truly challenging—it asks users to become amateur economists, analyzing existing and potential future markets for a work, and predicting the effect a proposed use will have on those markets. But it can be thought of more simply: is the use in question substituting for a sale the source’s owner would otherwise make, either to the person making the proposed use, or to others? Generally speaking, where markets exist or are actually developing, courts tend to favor them quite a bit. Nevertheless, it is possible for a use to be fair even when it causes market harm.
The "Fifth Factor:" Transformative Use
Transformative use is a relatively new addition to fair use law, having been first raised in a Supreme Court decision in 1994. (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994.) A derivative work is transformative if it uses a source work in completely new or unexpected ways. Importantly, a work may be transformative, and thus a fair use, even when all four of the statutory factors would traditionally weigh against fair use!
Parody is one of the most clearly identified transformative uses, but any use of a source work that criticizes or comments on the source may be transformative in similar ways. Legal analysis about this kind of transformative use often engages with free speech issues.
Courts have sometimes found copies made as part of the production of new technologies to be transformative uses. One very concrete example has to do with image search engines: search companies make copies of images to make them searchable, and show those copies to people as part of the search results. Courts found that those thumbnail images were a transformative use because the copies were being made for the transformative purpose of search indexing, rather than simple viewing.
Other Transformative Uses
Because transformative use is a relatively new part of copyright law, it is still developing. Many commentators suggest that audio and video mixes and remixes are examples of transformative works, as well as other kinds of works that use existing content to do unexpected and new things. There is a lot of room for argument and interpretation in transformative use!
Analyzing Specific Use
It can be very difficult to apply basic ideas about fair use to specific situations. One good way to develop your general understanding of fair use is to discuss examples with others. - You'll be surprised how easily reasonable people can disagree!
Since even experts usually only make a "best guess" as to whether a use is fair or not, it's not easy task to think through whether a use you want to make is a fair use. We have developed a tool that may help you organize your thoughts.
Best Practices = Better Guidance
Recently, a group of scholars at American University and other colleagues in many fields have been working to develop codes of best practices in fair use. Rather than attempting universal guidance, these best practices are deeply tied to specific contexts of use. Rather than spelling out clear-cut rules, the best practices provide suggestions, compare common activities, and are largely based on input from members of the community of users. The various Best Practices in Fair Use that exist are also not legally binding, but do better than hard-and-fast guidelines at acknowledging the flexible (and yes, uncertain) nature of fair use.
Of particular interest to scholars may be the Code of Best Practices in Fair Use for Scholarly Research in Communication, for Media Literacy Education, for Poetry, and for OpenCourseWare. Other codes include Documentary Film and Online Video. Because this approach to fair use has developed relatively recently, many fields have not yet developed codes. Still, parallels between similar fields may allow for extrapolation.
Asking for Permission
This section provides an overview of procedures for contacting and requesting permission from a copyright owner to use a copyrighted work. If you already know exactly what you want and are in communication with the copyright owner, you may go directly to one of the permission forms found at the end of this section.
Procedures for Securing Permission
Permission is not always required to use a work, depending on the work you choose or on your intended use. You may need to secure permission if you determine that the work you have selected to use is protected by copyright (i.e., not in the public domain), your use is not a fair use, and there are no other statutory exceptions apply. If you are just beginning the process, you may need to carefully consider the steps for securing permission, as detailed below.:
This page is licensed by a Creative Commons Attribution License with attribution to its author Dr. Kenneth D. Crews (formerly of Columbia University).