Copyright and Fair Use

What is copyright?

Copyright is a form of legal protection that provides authors of original creative works with limited control over the reproduction and distribution of their work. It gives copyright holders a set of exclusive rights to

• reproduce the work, in whole or in part,
• distribute copies of the work,
• publicly perform the work,
• publicly display the work, and
• prepare derivative works based on the original, such as translations or adaptations.

These rights are subject to exceptions and limitations, such as "fair use," which allow limited uses of works without the permission of the copyright holder.  A person could be held liable for copyright infringement if they use copyrighted materials when exceptions do no apply and without the permission of the copyright holder. 

What does copyright protect?

Copyright protects "original works of authorship." To be protected by copyright, a work must be original and recorded. It cannot be copied or expressed without being recorded.

Types of works protected by copyright include:

• Literary works
• Musical works
• Dramatic works
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings
• Architectural works

What is not protected by copyright?

• Facts, ideas
• Procedures, methods, systems, processes
• Works that are not fixed in a tangible form
• Titles, names, short phrases, or slogans
• Familiar symbols or designs
• Mere variations of lettering or coloring
• Mere listings of ingredients or contents
• Works of the United States government
• Works that have passed into the public domain

Who owns the copyright to a work?

In most cases, the author or creator of the work is the copyright holder unless they have transferred the rights to someone else through a written agreement, such as a publishing agreement.

How long does copyright last?

Under current U.S. law, copyright lasts until 70 years after the death of the author. For works made for hire, the copyright term is either 95 years from the date of publication, or 120 years from the date of creation, whichever is shorter.

After the copyright term expires, works pass into the public domain, meaning that anyone is free to reproduce, distribute, or otherwise re-use the work.

Content from NYU Libraries Copyright Research Guide.

Framework for Copyright Analysis

One of the most frustrating things for most people is that the answer to any copyright question is "It depends." This framework was designed to help deal with the uncertainty of copyright. By working through these questions for any copyright problem, in the order they are presented, you should be able to identify which parts of copyright law apply to your situation. 

1. Is the work protected by copyright?

   1. Is the work I want to use protected by copyright, or is it in the public domain? 

   2. 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?

   1. 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? 

3. Is there a license that covers my use?

   1. Is there a Creative Commons license attached to the work? If so, can I comply with the terms of the license, or can I find another useful work that is CC-licensed?

   2. 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? For UM faculty, staff or students, you can contact Ask-a-Librarian if you have questions about using library materials.

4. Is my use covered by fair use? (See the Fair Use tab)

   1. Four factors are:

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

      2. the nature of the copyrighted work;

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

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

   2. Questions for transformative fair use under factor one are:

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

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

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

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

   1. If so, first locate the copyright owner and fully explain your intended use in your permission request.

   2. If there is no response or the answer is no, reconsider your use of this work to see if you can make a fair use, or consider using another work.

Adapted from “A Framework for Analyzing any Copyright Problem” by Kevin Smith, Lisa A. Macklin, and Anne Gilliland for the "Copyright for Educators and Librarians Course" on Coursera   CC-BY-SA

This adaptation is also released under a CC-BY-SA Creative Commons License.