Copyright for Faculty

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.

Copyright expirations

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.

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.

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.

Four Statutory Factors

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!

2. Nature of the Original Work

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

Amount

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.

Substantiality

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

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.

New Technologies

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!

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).