Copyright and Fair Use for Faculty

U.S. copyright law, as defined in Title 17 of the United States Code, protects "original works of authorship fixed in a tangible medium of expression" for a limited period. Copyright takes place automatically from the moment a work is first “fixed in a tangible medium” and a copyright notice, registration, or formal publication are not required to acquire copyright. Copyright applies both to traditional media (books, records, etc.) and to digital media (electronic journals, websites, etc.).

Copyright protects the following eight categories of works:

1. literary works
2. musical works
3. dramatic works
4. pantomimes and choreographic works
5. pictorial, graphic, and sculptural works
6. motion pictures and other audiovisual works
7. sound recordings
8. architectural works

Ownership of a copyrighted work includes the right to control the use of that work. Use of such work by others during the term of the copyright requires either permission from the author or reliance on the doctrine of fair use. Failure to do one or the other will expose the user to a claim of copyright infringement for which the law provides remedies including payment of money damages to the copyright owner.

Works that cannot be copyrighted include, but are not limited to:

• Ideas, concepts, principles, or discoveries
• Titles, names, slogans, short phrases
• Works in the public domain (out of copyright)
• Discoveries
• Procedures

However, it may be possible to copyright the way these things are expressed.

You retain the copyright until you transfer or assign it to someone else. Section 106 of the Copyright Act gives the owners of copyright the following five exclusive rights:

1. Right to reproduce the work
2. Right to prepare derivative works, including translations
3. Right to distribute the work to others via a license, sale or other means
4. In the case of artistic works, the right to display or perform the work
5. In the case of sound recordings, the right to perform the copyrighted work publicly by means of a digital audio transmission

These are also the rights you are usually asked to give to a publisher when signing a commercial publication agreement. The "copyright transfer" clause is very common but not actually required for publishers to perform their work. That is why publishers of open access (OA) publications do not ask authors to transfer their copyright to them. Authors of OA publications normally retain copyright in their works and instead provide the publisher with a license giving them the right to perform their work. For more about OA publishing and author rights, see the Open Access and Scholarly Communication guide.

Determining Copyright Status

Is It Protected By Copyright? This online tool can help determine whether a particular work is still covered by copyright according to U.S. law. Created by the ALA Office for Information Technology Policy.

Obtaining Permissions

You need to obtain permission when you use a work in a way that is not covered by one of the exemptions to copyright law like fair use.

Steps that need to be followed to obtain permission to use copyrighted material:

1. Determine if permission is needed for the work you want to use.

2. Identify the copyright holder or agent. The Copyright Clearance Center and the Authors Registry can help you contact copyright holders. Remember: for most scholarly works under copyright, the publisher is the copyright holder.

3. Send a formal request for permission to use the work, giving yourself ample lead time as the process can take months.

4. Decide if you are willing to pay the licensing fee/royalty.

5. If the copyright holder can't be located or is unresponsive (or if you are unwilling to pay the licensing fee), be prepared to use a limited amount that qualifies for the fair use exemption, or use alternative material.