With the new school year rapidly approaching I thought I might take this opportunity to provide some answers to questions I am frequently asked relating to copyrights by educators and administrators. I have tried to be as thorough as possible, but thorough and complete answers are well beyond the scope of this article. Complete thoroughness is also difficult any time you are dealing with copyrights, particularly in an educational context, because the creator owns “exclusive rights,” but “fair use” grants permission to anyone, particular educators, to use at least portions of copyrighted works.
In some cases reference to this article together with reference to United States Copyright Office Circular 21 may provide the guidance that is necessary. More than likely, however, it will be necessary to seek either: (1) permission to use the work of another; or (2) the advice of an attorney who can thoroughly analyze the unique facts presented by your situation. Having said this, when in doubt it is always the better practice to seek permission. In my experience most copyright owners are more than happy to comply with the reasonable request of an educator. Indeed, many copyright owners are honored by the fact that a teacher or professor would want to use their work in their classroom.
1. WHAT IS A COPYRIGHT?
A copyright is a form of intellectual property protection provided for under the laws of the United States. The right extends to all authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. It is, however, possible for the original author to completely transfer a copyright to another, in which case the author’s rights in the copyrighted material would be extinguished. Therefore, it is probably more helpful to speak in terms of “the rights of the copyright owner” rather than continually referring to the author.
Section 106 of the 1976 Copyright Act generally gives the copyright owner the exclusive right to do and to authorize others to do the following:
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly, in the case of literary, musical, dramatic, and choreographic workds, pantomimes, and motion pictures and other audiovisual works;
- To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of the motion picture or other audiovisual work; and
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
It is important to note that a copyright is best thought of as a bundle of rights, rather than as a single right. Therefore, it is possible for a copyright owner to transfer a portion of the rights mentioned above, while at the same time retaining other rights.
2. WHEN IS A WORK PROTECTED?
A copyrightable work enjoys protection from the moment it is created and fixed in a tangible form. No federal registration is necessary for a work to be considered copyrighted. While not mandatory for the creation of a copyright, federal registration is a necessary prerequisite to a copyright infringement action. Additionally, several valuable remedies (i.e., statutory damages and attorney’s fees) may be lost unless the work is federally registered within three months of its creation. It is, however, possible for the creator to copyright an original work even after three months have passed. Some of the best remedies they could otherwise have relied upon may be unavailable, but they can still seek damages and an order preventing you from doing what you are doing if you are infringing their copyrights.
3. WHAT WORKS ARE PROTECTED?
A copyright protects “original works of authorship” that are fixed in a tangible form of expression. The following works are copyrightable:
- literary works;
- musical works, including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
- computer programs
4. WHAT DOES THE “©” MEAN?
Many people are familiar with the copyright symbol that appears on so many copyrighted works. While it is still advisable to put such a symbol on copyright works, there is no longer any requirement that this symbol appear on copyrighted works. Moreover, the copyright owner can, but need not, put this familiar copyright symbol (i.e., ©) on works immediately after creation, even before the work is federally registered.
Prior to 1989 failure to place the copyright symbol on a work created substantial problems for the copyright owner, ranging from the complete loss of the copyright to the inability to enforce the copyright against innocent infringers. The provision of the Copyright Act that previously required the copyright symbol to be prominently displayed was known as the “notice requirement.” Now that the notice requirement has been abandoned it is very difficult to know in some cases whether a work enjoys copyright protection. Therefore, it is always best to assume that a work is copyrighted and if you are going to use it you need permission.
5. WHAT IS NOT PROTECTED BY COPYRIGHT?
Several categories of works and materials are generally not eligible for copyright protection. These include:
- Works that have not been fixed in a tangible form of expression.
- Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration thereof.
- Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).
- Forms that do not convey information.
- Any work created by the United States Government or an employee of the United States Government working within the scope of his or her employment.
6. WHAT COPYING IS PROHIBITED?
As a general rule and starting point, it is illegal for anyone to violate any of the rights provided by the copyright law to the copyright owner. When a copyright owner claims that someone has committed copyright infringement it is necessary for the copyright owner to prove two things. First, it is necessary for the copyright owner to prove that they are indeed the owner of a valid copyright. Second, the copyright owner must prove that the alleged infringer copied the original elements of the copyrighted work. Generally speaking the first prong is not difficult to meet. In most cases the question will be whether the alleged infringer took that which is original. This is a crucial question because a copyright protects only original works of authorship.
Perhaps an example will help illustrate. It is axiomatic that facts cannot be copyrighted. The United States Supreme Court has held that names, addresses and telephone numbers in a telephone book are facts. Therefore, individual names, addresses and telephone numbers are not copyrightable. This is not to say, however, that a telephone book is not copyrightable. In most telephone books there are many original works of authorship that are deserving of copyright protection, such as the prose works at the beginning of the book. Therefore, there may well be parts of the telephone book that are copyrightable. The copyright will, however, extend only to that which is original. Thus, it would not be copyright infringement to copy wholesale all the names, addresses and telephone numbers because these are not protected.
Notwithstanding the above, it is important to understand that even the order of a series of non-copyrightable elements can be copyrighted as a compilation. For example, assume you have created an anthology of English Literature and all of the works you have chosen are in the public domain (i.e., no longer copyrighted). Even though the underlying works are not copyrighted you still have a copyright in the compilation. What is original and copyrightable is the unique order of the anthology. Additionally, if you write original notes, problems and introductory pieces, this material will be copyrighted and, therefore, protected. Remember, your copyright will extend only to that which is original. This means that you cannot claim any right in the non-copyrightable elements AND others can simply copy these non-protected elements from your work.
7. WHAT IS FAIR USE?
The exclusive rights of the copyright owner are not unlimited in scope. Sections 107 through 121 of the Copyright Act establish limitations on these rights, and together represent the doctrine of “fair use.” Most of the fair use provisions are highly specific exemptions from copyright liability that Congress has enacted to encourage, or at least to allow, certain behavior. These specific exemptions from liability can be found in Section 108 through 120 of the Copyright Act. The catch-all provision, which is the provision generally being referred to when the term “fair use” is used, is section 107. This catch-all fair use provision specifically provides a safe harbor for what would otherwise be infringing activities if such activities are engaged in for the purpose of teaching, scholarship and research. If only the safe harbor provided by section 107 were as simple as the preamble to the section suggests. There are four factors that are considered in determining whether such uses are “fair” and not infringing, even if the use is for teaching scholarship and/or research purposes. Therefore, caution must be exercised with respect to overestimating the reach and protections afforded by section 107.
Giving generalized rules of thumb when dealing with fair use can be exceedingly difficult. For example, in Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), the United States Supreme Court held that the copying of less than 400 words from the memoirs of President Gerald Ford constituted copyright infringement and was not a fair use. In Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), the US Supreme Court held that copying an entire movie would be considered fair use if the copying was done for time shifting purposes. While these cases can be reconciled, they work together to provide the ultimate caution when dealing with fair use, be careful with your analysis and make no generalizations. These cases certainly underscore the importance of considering all four of the fair use factors in every case.
What can be safely said, however, is that academic uses that are educational and that are not commercial in nature, or commercial by disguise, are most likely going to be considered fair uses under 17 U.S.C. § 107 provided that there is not an adverse effect on the potential market for the work in question. This argument gains significant strength when the amount of the work that is taken is not significant in relation to the whole. When discussing the importance of the amount taken, the Supreme Court has focused on whether the quantity and value of the materials used was reasonable in relation to the purpose of the copying, paying particular attention to the fact that the extent of permissible copying will vary with the purpose and character of the use. The best rule of thumb that can, therefore, be passed on the academics is that if you are using copyright material without permission you should not be making money on the venture, and you should not use so much of the work that it is unnecessary for students to purchase the work in question.