Copyright can be a tricky concept. But it's deeply intertwined with writing, research, and every time you communicate online. This guide will help make copyright a little clearer.
On this page, we will answer the following questions:
The rest of the guide will go into more detail related to specific copyright topics:
Copyright: "a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression [emphases in original] (U.S. Copyright Office "What is Copyright?").
Intellectual property: "any product of the human intellect that the law protects from unauthorized use by others. The ownership of intellectual property inherently creates a limited monopoly in the protected property (Legal Information Institute "Intellectual Property")."
The United States Constitution grants Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Art. 1, Sec. 8). This clause, though it does not use the word "copyright," is the basis of copyright law in the United States. Its logic is that giving authors temporary monopolies on the use of their works will promote their creativity by giving them an incentive to create the works. It gives Congress broad powers to determine how to best set these incentives.
Basic RequirementsThere are two requirements for something to qualify for copyright protection:
To be an original work of authorship, something must be created by a human using some minimal level of creativity and without directly copying another work (U.S. Copyright Office, "What is Copyright?").
Fixing in a tangible form of expression means that the work is captured in a physical form so that it can be perceived and used to communicate to others for an extended period of time. This includes physical forms where you would need a device to perceive and interact with the work.
Image by StockSnap from Pixabay used under Pixabay license.
These are broad categories of works that can be copyrighted:
These categories are designed to be interpreted broadly. Anything that is a work of original authorship fixed in a tangible form of expression can be copyrighted (U.S. Copyright Office, Circular 1 [PDF] 1).
Some of these cases where copyright does not apply might be protectable under other types of intellectual property law, such as patents and trademarks (U.S. Copyright Office, Circular 33 [PDF] 1,3).
Copyright holders are granted the following exclusive rights:
So copyright holders are allowed to make copies of the work, distribute and sell it, display it, perform it, and make derivatives from it. Most of these are fairly straightforward except making derivative works.
A derivative work is a new work of authorship that is created ("derived") from an existing copyrighted work. Common examples of derivative works include translations, adaptations (such as a TV version of a book), and updated or revised editions. A derivative work may also be copyrightable if it adds new original work (U.S. Copyright Office, Circular 14 [PDF] 1).
Copyright owners also have the power to grant others the ability to make use of these rights (U.S. Copyright Office, Circular 1 [PDF] 2). This is done through a license (Legal Information Institute, "License").
The length of copyright protection will vary depending on how it was authored:
Once these time periods have expired, the work enters the public domain.
These lengths apply to anything published on or after January 1, 1978. The lengths of copyright protection have varied over time. To figure out the length of copyright for something published before January 1, 1978, start with the U.S. Copyright Office's Circular 15A: Duration of Copyright [PDF].
Copyright lengths have grown significantly over the years. Many critics believe that the current lengths of copyright subvert the original purpose of incentivizing creativity.
For works in the public domain or where fair use applies, permission is not needed to use a copyrighted work. However, if it is determined that a copyrighted work is protected and fair use does not apply, permission will be needed. The United States Copyright Office provides the following two steps to obtain permission.
Step One: Research Copyright Status
Once you determine that you need permission to use a copyrighted work, you need to research its copyright status. Start your research by checking the copyright notice and the records of the Copyright Office. Copyright notice is a statement placed on copies or phonorecords2 of a work to inform the public that a copyright owner is claiming ownership of it. For more information, see Copyright Notice (Circular 3). Consult the copyright notice’s location on the work or its packaging for the name of the copyright owner. Keep in mind that copyright notice for works published on or after March 1, 1989, is optional. As a result, the work you wish to use may not have a copyright notice; however, the absence of a notice does not necessarily mean that a work can be freely used. Also remember that copyright ownership can be transferred, so the owner specified in a copyright. notice may not be the current owner. Only the current copyright owner of the exact material to be used can grant permission for its use. Some works may contain material originally published elsewhere. Check the work for credits or acknowledgments, which are clues that material included in a larger work may belong to someone other than the owner specified in the copyright notice. In addition, for digital files, copyright management information (CMI), such as the author’s name or the copyright notice, may be available in the metadata in the file. For example, an image file often includes metadata describing the picture’s size, image resolution, and the date of creation; it may also include metadata identifying the creator, copyright owner, or licensing terms. The Copyright Office maintains records related to copyright registration and transfers of ownership. Records created after December 31, 1977, can be searched online at the Copyright Office’s website. Pre-1978 records are searchable in the Copyright Office. Compilations of pre-1978 copyright registrations can also be searched online at the National Archives website.
Step Two: Contact the Copyright Owner
After you determine the copyright status of the work you wish to use, you will need to contact the copyright owner to request permission to use the work. The contact information for the copyright owner may be found in the Office’s records, or you may need to contact the organization that published the work. When contacting the copyright owner, you may want to include the following information: • The name of the author, editor, or translator
• The title of the work and any edition or volume number
• Exact material you want to use, being as specific as possible
• Copyright date of the work • How you will use the material
• The audience to whom the work will be distributed or otherwise made available
• Whether the material will be sold • Name of your organization—note if it is a nonprofit
• Your name and contact details
Contact a copyright owner or author as far as possible in advance of when you want to use the material specified in your permissions request. The copyright owner may work with an agent or service that grants licenses to use a work on the copyright owner’s behalf. So the first person you contact may not control the rights and may have to refer you to the correct copyright owner or may need time to research the extent to which permission can be granted.
The Constitution of the United States: A Transcription. U.S. National Archives and Records Administration, www.archives.gov/founding-docs/constitution-transcript.
Crews., Kenneth D. Copyright Law for Librarians and Educators : Creative Strategies and Practical Solutions. Fourth edition, ALA Editions, 2020. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=nlebk&AN=2434646&site=eds-live&scope=site.
Legal Information Institute. “Intellectual Property.” Wex, Cornell Law School, www.law.cornell.edu/wex/intellectual_property.
---. "License." Wex, Cornell Law School, www.law.cornell.edu/wex/license.
United States Copyright Office. Circular 1: Copyright Basics. www.copyright.gov/circs/circ01.pdf.
---. Circular 14: Copyright in Derivative Works and Compilations. www.copyright.gov/circs/circ14.pdf.
---. Circular 33: Works Not Protected by Copyright. www.copyright.gov/circs/circ33.pdf.
--- “What Is Copyright?” Copyright.gov, www.copyright.gov/what-is-copyright.
--- "How to Obtain Permission", U.S. Copyright Office. https://www.copyright.gov/circs/circ16a.pdf
