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Copyright & Fair Use: Copyright

What is Copyright?

The U.S. Copyright Office defines copyright as "a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works."

The law gives the owner of copyright the following exclusive rights:

  • To reproduce work, in whole or in part
  • To distribute copies of the work
  • To prepare derivative works based on the original (translations or adaptations)
  • To perform or display the work publicly

 

 

 

What does copyright protect?

Types of works protected by copyright include:

  • literary works
  • musical works
  • dramatic works
  • choreographic works
  • pictorial, graphic, and sculptural works
  • architectural works
  • software

Not protected:

  • facts or ideas
  • titles, names, short phrases, or slogans
  • procedures, methods, systems or processes
  • works of the United States Government
  • works that have passed into the public domain

When a work is created in a fixed form it immediately becomes the property of the author that created it. This is not the case if the author has transferred their rights to someone else through a written agreement (example: publishing agreement).

The authors of a joint work are automatically co-owners of the copyright of the work, unless there is an agreement stating otherwise.

If the work is created as part of a person's employment it may be considered a "work for hire". Section 101 of the copyright law defines "work for hire" as:

  1. a work prepared by an employee within the scope of his or her employment; or
  2. a work specially ordered or commissioned for use as:
  • a contribution to a collective work
  • a part of a motion picture or other audiovisual work
  • a translation
  • a supplementary work
  • a compilation
  • an instructional text
  • a test
  • answer material for a test
  • an atlas

if the parties agree in a signed written instrument that the work shall by considered work made for hire.

Faculty: See the Authors & Creators page for information on 

Current U.S. copyright law states that copyright lasts until 70 years after the death of the author. Works made for hire have a copyright term of either 95 years from the date of publication OR 120 years from the date of publication, whichever is shorter.

When copyright expires, works pass into the public domain, meaning anyone can reproduce, distribute, or re-use the work. 

A Framework for Analyzing any Copyright Problem

1. Is the work protected by copyright?

  • Is the work in the public domain? Use the Copyright Digital Slider to help determine this.
  • If I wrote it, do I still own copyright, or did I sign over rights for my intended use to the publisher?

2. Is there a specific exception in copyright law that covers my use?

  • Is my intended use covered by a specific exception to the exclusive rights in the copyright law, such as the one for libraries or for classroom performances and displays? Use the Know Your Copy Rights chart to find the proper way to share the use if you meet an exception.

3. Is there a license that covers my use?

  • Is there a Creative Commons license attached to the work? If so, can I comply with the term of the license, or can I find another useful work that is CC licensed? Read about the types of licenses in the Creative Commons and how to attribute.
  • If affiliated with an educational institution, is there a license that governs how the copyrighted material I'm accessing through my library can be used? If so, can I comply with the license terms? If you are uncertain, your librarian should be able to help you.

4. Is my use covered by fair use? Here is where it can get tricky...

  • Four Factors to Consider

i. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

ii. the nature of the copyrighted work;

iii. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

iv. the effect of the use upon the potential market for or value of the copyrighted work

  • Questions for transformative fair use under factor one are:

i. Does the copyrighted material help me make my new point?

ii. Will it help my readers or viewers get my point?

iii. Have I used no more than is needed to make my point? (Is it "just right"?)

Use the Fair Use Checklist in the Resources tab of this guide to track your due diligence. 

5. Do I need permission from the copyright owner for my use?

  • If so, first locate the copyright owner and fully explain your intended use in your permission request.
  • If no response or answer is no, reconsider your use of this work to see if you can make a fair use, or consider using another work.

Use the Permission page to find sample permission letters and best practices for getting permission.

 

The above guidelines have been adapted from © 2014 Kevin Smith & Lisa Macklin CC BY-SA 4.0

Copyright Duration

copyright term graph

 

Creative Commons License © 2008 Tom Bell

Want to Reuse this Content?

 This content is under a Creative Commons License that requires attribution to Texas Wesleyan University.