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Introduction to copyright including exclusive rights, copyright duration, and fair use

What is copyright?

Copyright is a form of intellectual property*.  Many products of human intellect can be privately owned—just like houses and cars are privately owned.  The results of mental effort have been legally protected for a long time.  Today, American copyright law is codified in the US Code and has been interpreted in many court decisions.  Copyright is a complex and evolving area of law.  This guide is a simple introduction to this complicated subject.  It is not legal advice about any particular question.   

What does copyright really mean?  Although copyright is a singular word, it is a plural concept.  A copyright includes all of these exclusive rights: 

1.  to reproduce the work

2.  to prepare derivative works based upon the original work

3.  to publicly distribute copies of the work

4.  to publicly perform the work

5.  to publicly display the work

6.  in the case of sound recordings, to publicly perform the work via digital transmission

Exclusivity is one of the most important principles of copyright (and other forms of intellectual property law).  Only copyright owners may use their work in certain ways.  If the rest of us want to use their works, our uses must fit into exceptions to exclusive ownership or we must seek permission from the copyright owners.  The UW Libraries has a guide to using copyright-protected works.

*Other forms of intellectual property are trademark (for marks that indicate the sources of commercial goods and services) and patents (for inventions and processes).

What does copyright protect?

Copyright protects creative works, which is a very broad group of things.  A partial list includes:

  • artwork
  • photography
  • texts - from scientific treatises to poetry to lecture notes
  • choreography
  • film
  • music
  • sound recordings
  • computer code
  • architectural designs

Not much creativity is required.  Courts say only a "modicum" is necessary, so lecture notes and pictures on your cell phone likely qualify for copyright protection.

In addition, works must be "fixed in a tangible medium" to be protected.  This ensures we have a stable record of a what is protected.   It would be hard to argue someone infringed your copyright to your novel if you don't have a manuscript as evidence of what you created. 

Copyright does not protect all works or inspirations.  The following are not protected by copyright:

  • facts
  • ideas
  • works whose copyright has expired and that are in the public domain
  • works by the US federal government
  • useful articles -- for example sweaters and forks (although decorations on sweaters and forks can be protected)

How long does copyright last?

For most works created after 1978, copyright lasts a long time.  Here is a general guide.

  • For works created by people copyright lasts for the life of the author plus 70 years. 
  • If a work has more than one copyright holder, copyright lasts for the life of the last surviving author plus 70 years. 
  • For anonymous works, pseudonymous works, and works with institutional authors (for example, a university or a corporation), copyright lasts 95 years from publication of the work or 120 years from the work's creation, whichever is shorter. 

For works created prior to 1978 the situation is complicated These tools are useful guides.

Who owns copyright?

Initial ownership is straightforward.  In everyday situations, the creator of a work owns the copyright to her work.  If more than one creator contributes to a work wih the intention that their contributions are indistinguishable in the finished work, the creators all own the copyright equally.

 

Works for hire are different.  If an employee creates a work for an employer while acting within the scope of her employment, the employer is considered to be the author and owns the copyright to the work.  If work is created on a freelance basis, the employer and the freelancer can sign a contract agreeing that the work is for hire.

 

Transfer of ownership is possible.  Copyright can be sold or licensed for use, just like tangible property.  To be binding, the original copyright owner and the new owner or licensee must agree to the transfer in writing

How do I obtain a copyright?

US copyright law protects works from their creation.  So once you create a work with a "modicum of creativity" that is "fixed in a tangible medium" you do not need to do anything more for it to be protected by copyright.

 

Nevertheless, registering your work with the U.S. Copyright Office offers advantages.  The US Copyright Office has records of copyright ownership that members of the public can search.  So if you register your work, people who want to use it can discover that you are the copyright owner and the year you created the work.  Registration is also a prerequisite to a civil infringement lawsuit in case someone infringes your work.  Should you find yourself In this unfortunate scenario, you may be eligible for greater monetary damages if your work is registered. 

 

You can register your work using the US Copyright Office online registration systemAs part of the process, you must deposit a copy of your work and pay a fee, which starts at $35 for a single application.

 

Regardless of whether you register your work with the US Copyright Office, consider providing notice that you are the copyright owner.  This is the recommended format for copyright notice:

"©" or "Copyright" or "Copyr."      DATE OF FIRST PUBLICATION     OWNER'S NAME

For example, © 2007 James Bond

How may I use a work if someone else owns its copyright?

We often want to use works whose copyright is owned by someone else.  Please see this guide to using copyright protected works for an overview of strategies. 

Maryam Fakouri

More resources about copyright

The US Copyright Office provides useful information and guidance about copyright, including:

US Copyright Law

 Frequently Asked Questions about copyright

Circulars about many topics, including © for games, comics, and sound recordings

Copyright Crash Course from the University of Texas is an in-depth tutorial about copyright law

Owning and Using Scholarship: An IP Handbook for Teachers and Researchers by Kevin Smith, JD