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Copyright & Fair Use

What is copyright?

Copyright Law describes a collection of exclusive rights for creators (authors, artists, inventors, etc.) of original works. U.S. copyright law is referred to in the Constitution, where Congress is given the power "to promote progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," (Article I, Section 8, Clause 8).

Though it has been revised and updated several times, most recently in the U.S. Copyright Act of 1976, the core rights given to creators have essentially remained the same:

  • To reproduce the copyrighted work in copies
  • To prepare derivative works, such as translations, dramatizations, arrangements, versions, etc.
  • To distribute copies to the public by sale or other transfer of ownership, such as licenses, contracts, etc.
  • To perform the copyrighted work in public
  • To display the copyrighted work in public

What is protected?

All original, creative works fixed in a tangible medium of expression may be protected by copyright. Copyright protection does not require publication or registration of the work with the U.S. Copyright Office. It is applied at the moment a creative work appears in fixed form. Nor are works created after 1978 required to display a © symbol.

However, registration with the Copyright Office has some advantages:

  • It establishes a public record of the copyright claim
  • In order to sue for infringement, a copyright claim must be registered
  • Registration may be completed at any time during the life of the copyright, but registration within three months of the date of creation entitles the owner of the copyright to statutory damages and lawyers fees

What isn't protected?

There are a number of areas that are not addressed by copyright law:

  • Logos and slogans (protected by Trademark law)
  • Methods, processes and systems (protected by Patent law)
  • Proprietary recipes or formulas (protected by Trade Secret law)
  • U.S. Government information (in the public domain in the U.S.)
  • Factual information or raw data (uncopyrightable)

Who owns a copyright?

In most cases the creator of the work owns the copyright. If more than one person is the creator, each person owns copyright. This can be complicated by a person or people being hired to create a work or creating it in the course of their regular employment. Sometimes these works-for-hire are owned by the employer.

Length of copyright

Most U.S. works are protected for the life of the creator plus seventy years. As of 2019, works created in the U.S. in or prior to 1924 are in the public domain. Works created between 1924 and 1978 can be protected for up to 95 years. Works created outside the U.S. have different lengths of copyright and may not have passed into the public domain, even if they were created before 1924.

Determining the length of copyright can be complicated. There are a number of tools that can help for works created in the U.S.:

For more information, see the U.S. Copyright Office's Circular on Duration of Copyright. Or ask for help.

What is the public domain?

Works in the public domain are not protected by copyright, either because the length of copyright has run out or the copyright owner has placed the work in the public domain and made it available for use by anyone without restriction. Every country has different rules about the public domain. As of 2019, any work created in the U.S. in or before 1924 is in the public domain.

Each year from 2019 on, more works will be released into the public domain on New Year's Day, based on the year they were created.

For more information about the public domain, see:

Remember, if you use a work in the public domain, you still need to cite its source!

Creative Commons licenses

One of the rights reserved for creators is the right to distribute copies to the public by sale or other transfer of ownership, including licensing. Creative Commons licenses allow the creator to reserve some rights, while encouraging participation in the cultural dialog by applying a minimal license that allows copying and redistribution of their work. There are 4 restrictions that a Creative Commons license can require:

  • Attribution: You must acknowledge the creator of the work with appropriate credit
  • Share Alike: If applied, you can remix, transform, or build upon the work for any purpose, but must share your new work using the same license
  • No Derivatives: If applied, you can copy and redistribute the work in any format, but not change it in any way
  • Non-commercial: If applied, you may not use the work for commercial purposes

The Creative Commons website explains the licenses and what they allow. A creator can also apply a CC0 or Public Domain Mark provided by Creative Commons to signal that they are not reserving any rights to their work, or that there are no known restrictions to the reuse of the work.

Exemptions and limitations to copyright

There are several exemptions and limitation to the rights reserved for creators of a work. Among the most important are:

  • Fair Use (Section 107)
  • Face-to-face teaching exemption (Section 110 (1))
  • TEACH Act (Section 110(2))
Fair Use (Section 107)

See the Fair Use tab for more information.
 

Face-to-face teaching (Section 110 (1))

U.S. Copyright Law states that “ performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction” is NOT copyright infringement (Section 110(1)).

When using audiovisual works, including motion pictures, audio recordings, and images, the works must be lawfully made copies, and instructor displaying the works must know or have no reason to believe the copies were not lawfully made.
 

TEACH Act

The TEACH Act (Technology, Education, and Copyright Harmonization) specifically applies to distance education or online teaching. It provides an exception to the rights of the creator of a work if certain requirements are met. It is more restrictive than the face-to-face teaching exemption.  If you or the works you want to use do not meet the criteria listed below, you may still be able to use them if you can make a Fair Use argument.

For a full explanation, see the page on The TEACH Act:

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