Copyright Introduction: Using copyright-protected works

Copyright protects works that: 1. are original to the person who created them, 2. are "fixed in a tangible medium of expression", and 3. have more than a "modicum" of creativity.  That's a broad category but it leaves gaps.  These things are not protected by copyright:

facts

ideas

inventions (But inventions may be protected by patent.)

names, titles, and short phrases, for example "the time of your life" or "black star" or "radio silence"

familiar symbols and designs, for example $, &, ►, ©, and 

many creative works by the US federal government, such as text and images (However, agency trademarks and logos are protected by © along with some works on agency websites by independent contractors.)

Determining whether a work is protected by copyright can be a long and complicated inquiry.  This is especially true for works created prior to 1978.  This is because the requirements for copyright protection and the duration of copyright have changed so many times over the years.  These online tools can help you to investigate the copyright status of a work: 

Copyright Term and the Public Domain in the US

Copyright Genie

US Copyright Office Records  Note that these records are only for works registered after 1978.

Is it in the Public Domain? A Handbook for Evaluating the Status of a Work Created in the United States Between January 1, 1923 and December 31, 1977. Samuelson Law, Technology, and Policy Clinic, University of California Berkeley

The Creative Commons (CC) is a pool of content that is shared online, at no cost, to users everywhere.  Copyright holders opt-in to the Commons by assigning a CC license to their work.  See the examples below.   All kinds of works have CC licenses:  academic papers, photographs, music files, videos and more!  Just look at the terms on the CC license to determine whether your use is allowed.  

   CC - Indicates a Creative Commons license.

   BY - Attribution to the creator is required.  This is the most commons CC license term.

   NC - No commercial uses are allowed.

   SA - Share alike means works created with the CC content must be given the same CC license as the original work.  That way, the work will always stay in the Commons. 

   ND - No derivatives allowed, meaning the work must be used "as is" and without alteration.

At the UW Libraries most electronic resources (for example databases and DVDs) are protected by both copyright and license agreements.  Licenses may permit fewer uses than might otherwise be allowed by fair use, explained below.  For instance, some database licenses allow users to place a copy of a journal article in Canvas whereas others only allow users to link from Canvas to an article.

You can discover license terms for some of UW's journals using the UW Libraries Search tool.  Just look up the title of the journal, then look for the "view license terms” link at the right.  Click for details.  This option is not available for every journal.

When Congress passed our current copyright law, Title 17 of the US Code, it recognized that teachers and librarians need to use copyright-protected works from time to time to fulfill their missions.  So certain uses of works by librarians and teachers are expressly allowed under US copyright law.  These areas of the law are technical and narrowly drawn.  Fair use, described below and in this guide, is more flexible. 

17 U.S.C. §108 (often called "section 108") protects library employees who make copies of works under certain circumstances.  It's long and highly technical.  This tool helps to simplify it: Section 108 Spinner.

17 U.S.C. §110(1) allows performances and displays during in-person class meetings at not-for-profit institutions.  Any copies used must be lawfully made.

Fair use is the most talked about exception to copyright protection.  It's a complex and evolving legal doctrine.  Fair use allows us to use copyright-protected works in limited ways, often for socially beneficial purposes such as creating new art or advancing knowledge.  There are four factors of fair use:

Purpose of the use - Generally speaking, socially beneficial uses such as teaching, research, comment, criticism, and journalism are favored.  Uses that are considered "transformative" are also favored.  Transformative uses can be:

Using the work in an entirely new way, for example using words as data instead of prose

Transforming the work itself, for example significantly altering a photograph 

Nature of the original work - Highly creative works, such as operas and plays, are generally protected slightly more than than works consisting mainly of facts. 

Amount and importance of the work used  - Smaller portions that aren't the "heart of the work" are favored.

Effect on the market for the original work - Fair uses do not take away the market for the original work.

These tools can help you to analyze these factors in relation to your work.  They can't offer legal advice, though.

Fair use checklist

Fair use evaluator

For examples of fair use cases and analyses see:

Fair Use Factors and Cases

US Copyright Office Fair Use Index

If you don't believe your use falls into any of the categories above, you can always seek permission to use the work.  Seeking permission requires a bit of effort but might be easier than you think.

1.  Identify and locate the copyright holder.  This can be tricky if the initial owner transferred the copyright or if the copyright holder has died.  Here are some research strategies.

• For texts, look at the beginning of the book or article for a copyright notice. Often, publishers own the copyright to written works.  If you don't have a copy of the book, you can find the publisher information in the library's catalog or elsewhere online.

• The WATCH file lists contact information for the estates of many writers and artists.

• Some fields—especially in the performing arts—have collective licensing agencies, which act as clearinghouses for rights.  If you are seeking permission to record a song or stage a play, for example, see whether the work you want to use is handled by a licensing agency.  Some of the larger ones are:

Dramatists Play Service for plays

Samuel French Agency for plays and musicals

Harry Fox Agency for music

ASCAP (American Society of Composers, Authors and Publishers)  for music

SESAC for music

BMI (Broadcast Music, Inc.) for music

2.  Write to your contact and ask for permission to use the work.  Your letter should be simple.  Be sure to indicate: 

• your name and contact information

• your purpose in using the work (for example in a history book)

• the extent of your use (for example, North American distribution and an initial print run of 10,000)

• the length of time you need permission (for example for one showing, for five years, or for perpetual use) 

• the amount and portion of the work you wish to use (for example, the first 20 minutes of footage, an entire short story, or pages 25-67 of a novel)

3.  Be prepared in case the copyright holder charges a fee.  Copyright holders often charge fees in exchange for permission.  This is especially true if a user plans to use their work for commercial purposes.  You may be able to negotiate fees. 

4.  Keep records of your correspondence.

For more thorough information about seeking permission as well as sample permission letters see this guide from Columbia University.

Sometimes finding an alternate work to use is a last resort.  Other times it's simply an easier option.  For example, if two works would meet your needs and one has a Creative Commons license but the other one doesn't, the Creative Commons option would save you time and effort.  Good luck with your projects and remember you can contact a librarian if you need help along the way.