Copyright Decision Tree: “Do I need to get permission to use this work?”

Copyright is literally the right to make copies of an original work. Copyright law is territorial. In the United States, determinations of who can make copies, what can be copied, and under what conditions copies are made is controlled by Title 17 of the U.S. Code.

Article 1, Section 8, Clause 8 of the U.S. Constitution, sometimes referred to as the Intellectual Property Clause, states: “[The Congress shall have 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.” Granting certain exclusive rights to “Authors and Inventors” for a limited period of time so as to enable them to profit from their work (e.g., monetarily or through reputation) was thought to “promote the progress of science and useful arts.” In other words, if creators are incentivized to create, society at large also benefits.

The exclusive rights of a copyright holder are enumerated in Title 17, Chapter 1, Section 106 of the U.S. Code. These are the right to control:

• Reproduction
• Distribution
• Public display
• Public performance
• Preparation of derivative works
• Digital broadcast of a sound recording

These rights may be transferred (e.g., an author might transfer her copyrights to a publisher) or waived (e.g., an author might release his work immediately into the public domain (more on this below)). The rights holder can also grant a license to define how a work is to be used (more on this in Step 3).

Intellectual and creative works often build on the work of others. However, the term “progress” from the Intellectual Property Clause above implies that the works that enjoy copyright protection should be original in nature and not merely derivative.

Section 102 enumerates the categories of works that enjoy protection. These include:

• 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

Section 102 states that protection is extended to a work that is “fixed in any tangible medium of expression.” This is further elaborated in the Section to the kinds of works that do not receive copyright protection: “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” In other words, it is the tangible expression of the work that is protected not the intangible idea that lies behind it.

Statements of fact, concepts, and discoveries (e.g., gravity) are not protected. The intellectual freedom, innovation, and creativity this limitation encourages is another way in which “progress of science and useful arts” is promoted for the benefit of society. Names, titles, short phrases, and slogans are not copyrightable because they lack sufficient authorship. Generally, layout and design, including typefaces, fonts, and lettering are not copyrightable because they are merely the “building blocks of expression that are used to create works of authorship.” (See Circular 33: Works Not Protected by Copyright at Copyright.gov for more information.)

Copyright protection is granted automatically and begins the moment a work is fixed in a tangible medium of expression. (Automatic copyright came into effect on March 1, 1989 when the United States signed on to the Berne Convention for the Protection of Literary and Artistic Works.)

As stated in the Intellectual Property Clause of the U.S. Constitution above, exclusive rights to copyright protection were intended for a limited time. Over time, however, the protection term has steadily increased. In the Copyright Act of 1790, the term was just fourteen years, renewable for another fourteen years. Today, for works published after 2002, the term is 70 years after the death of author. And for corporate authorship, the term is 95 years from publication or 120 years from creation, whichever expires first.

When copyright protection for a work expires, is waived by the author/creator, or is a work for which protection is ineligible (e.g., works produced by employees of the U.S. federal government) it enters into the public domain. A work in the public domain is, as it were, owned by the public and is free to be used/re-used by anyone as they see fit—even offer it for sale. It is not uncommon, for example, to see books of classic literature reprinted by publishers and offered for sale. Although these reprinted editions may bear a copyright notice, the literary text itself is in the public domain and not actually protected by copyright.

Whether a given work is in the public domain can be difficult to determine, as evidenced by this chart developed and maintained by Cornell University Library.

Both copyright infringement and plagiarism are issues of concern in academic settings. But they are actually two separate issues and not to be confused. Plagiarism is claiming as your own a work authored by someone else, or using someone else’s work without giving proper attribution. Copyright infringement is using someone else’s work without obtaining their permission. Proper attribution, not permission, is required to avoid plagiarism. Obtaining permission (unless covered by one of the other steps in the Copyright Decision Tree), not attribution, is required to avoid copyright infringement.

• U.S. Copyright Office’s online portal Copyright.gov
• Full text of Title 17 of the U.S. Code: Copyrights (via Cornell Law School’s Legal Information Institute)

An author/creator may assume that as the author/creator they are entitled to re-use a work in new works or new situations as they see fit without copyright implications. This is not necessarily the case. Recall from Step 1, that copyright law (Section 106) allows a copyright holder to transfer their rights to a third party. A common example of this is a scholar who transfers their copyright to a publisher in exchange for the publisher agreeing to publish their research in an academic journal or monograph.

In the example above, it has long been true, especially in the era of print, that publishers commonly required authors to transfer their copyrights in order to get their work published. This is changing to an increasing degree in the digital era (more on this in a moment). The most significant implication of transferring your copyrights is that you lose access to the exclusive rights granted to you as an author/creator of an original work, including any future uses. This means that you must engage the same process that any non-author/creator must, including possibly the need to request permission (Step 6), in order to use your own work in a changed situation or in new way.

In the print era, most scholarly authors didn’t give much thought to transferring their copyrights to publishers since they were primarily interested in getting their work published. Publishers held most of the power in this relationship. Choice and reuse potential was limited. The digital era has opened new prospects for authors and creators, and many are discovering an enhanced sense of ownership over and reuse potential for their original works. For example, beyond initial publication in an academic journal, a scholar may want to make that article openly accessible from the journal’s website, or they may want to deposit that work in their institution’s digital repository. Authors are increasingly scrutinizing pro forma publication agreements with publishers and negotiating more favorable terms. Instead of transferring all their copyrights away, an author may try to negotiate a non-exclusive publication license with a publisher while retaining other rights for future uses. (More about licensing in Step 3.)

As noted above in Step 1, copyright protection is granted to an author/creator automatically and begins the moment the work is fixed in a tangible medium of expression. A major exception to this rule is “work made for hire” as defined in Section 101, which includes “a work prepared by an employee within the scope of his or her employment.” In this situation, Section 201(b) stipulates that “the employer or other person for whom the work was prepared is considered the author [and] owns all of the rights comprised in the copyright.”

Work made for hire situations are common in academic institutions, and would-be authors/creators as well as persons seeking to use/re-use works should consult the institution’s intellectual property policy to determine who owns the copyright of a given work. For example, a professor may be the author and copyright holder of a course he prepared for in-class face-to-face instruction. However, if the institution commissions the professor to develop that course for an online instruction program, the institution may be considered the author/creator and the copyright holder.

As discussed in Step 1, the holder of a copyright of an original work is the owner of this intellectual property and controls certain exclusive rights over this work. Among these, is the right to specify how other people or entities are allowed to use the work. This specification is expressed through a license. A license is basically a contract between the rights holder and a would-be user. A use license does not invalidate copyright. Indeed, a use license can only be initiated as a form of “prior permission” by the copyright holder.

The placement of this step in the decision tree before either specific exceptions in copyright law (Step 4), fair use (Step 5), or (as a prior permission) asking for permission (Step 6) is significant because if there is a license the terms of use will be spelled-out there. If your intended use is authorized by the license you can use the work and no further decision needs to be made.

There are several common intellectual property use cases in academic settings that may be covered by licenses. For example, accessing journal articles or monographic literature from an aggregated database for conducting research, using images (photographs, illustrations, charts) for a PowerPoint lecture, using sheet music or a script for a public performance by a university choir or theatre group, etc. The availability of licenses granting prior permission for these and other cases can simplify the use of intellectual property on campus. Imagine if you had to conduct a fair use analysis (Step 5) or initiate a permission request (Step 6) for every single journal article you wanted to download from a database to use for your research. The entire academic enterprise would grind to a halt!

Use may be further simplified in a blanket way through licenses accessed through “collective rights societies”—organizations (such as ASCAP or BMI for musical compositions, or Copyright Clearance Center for texts) that manage licensing on behalf of thousands of rights holders under one roof.

It is important to appreciate that securing a use license may involve a fee (though fees are often rolled into the subscription price of the database or collective rights platform).

The internet has revolutionized easy dissemination of and access to information online. But this ease has created an erroneous impression that anything that can be downloaded online is legally okay to be used from the standpoint of copyright. This is not the case! Intellectual property in digital form is still protected by copyright just like any analog or physical format.

Notwithstanding the routine infringement of copyright that happens on the internet, there are many authors and creators who still want to utilize the power of the internet to broadly distribute their work online. Most of these authors/creators do not want to limit access to their work. But they do want to exercise some control over how their work is used. Balancing access with control was the basis for the creation of Creative Commons licensing. Creative Commons, founded in 2001 by intellectual property lawyer Lawrence Lessig, has developed a series of straightforward and easily understandable use licenses designed to facilitate free distribution of copyrighted work online.

The Creative Commons license suite provides a range of use scenarios (sharing, remixing, and/or commercial) that authors/creators can offer to users, from completely open to more restrictive:

• CC0 —author/creator waives all rights
• CC BY —author/creator requires only attribution (Recalling the distinction made in Step 1, all the CC licenses requiring attribution are not seeking to prevent copyright infringement. They are seeking to prevent plagiarism.)
• CC BY-SA —in addition to attribution, author/creator requires adapted work to be shared with the same license
• CC BY-NC — in addition to attribution, author/creator does not allow commercial use
• CC BY-NC-SA —in addition to attribution and non-commercial use, author/creator requires adapted work to be shared with the same license
• CC BY-ND —in addition to attribution, author/creator does not allow derivative works of the original work to be distributed
• CC BY-NC-ND —in addition to attribution, author/creator does not allow either commercial use or derivative works of the original work to be distributed

Sections 107-122 in Title 17 of the U.S. Code cover specific exceptions to the exclusive rights of copyright holders enumerated in Section 106 (Step 1). Exceptions are another way that copyright law seeks to balance private rights and the public good. Section 107, which deals with fair use, will be dealt with separately in Step 5 below.

Use cases that fall within the exceptions articulated in Sections 108-122 must meet specific conditions so as not to infringe copyright. Many of the requirements are fairly involved. However, unlike the fair use exception (Section 107), which requires a careful analysis of several weighted factors, most of the other exceptions present their required conditions in a checklist-like fashion. If you can check off all the conditions of the exception as met, a strong case that your use is non-infringing is provided. This is why the decision tree has you look at these exceptions before moving on to fair use (Step 5).

Several of the exceptions have potential application within an academic context. Section 110: Exemption of certain performances and displays is especially relevant to educational use.

Section 110(1) deals with performances and displays (e.g., showing a film, recital, reading), and simply states that no permission is required if a legal copy of a work (e.g., a film) is used for face-to-face teaching activities, at a non-profit institution, in a classroom or similar place devoted to instruction. No limitation is placed on how much of the copy can be used. For example, an entire film can be shown.

Section 110(2) is the codification of the Technology, Education, And Copyright Harmonization (TEACH) Act, which was signed into law on November 2, 2002, and deals with teaching activities transmitted via digital networks. Unfortunately, the use requirements are quite complex and significantly more restrictive than face-to-face use. This seventeen step checklist, created by the University of Texas Libraries, enumerates the requirements. Despite the advantage of mitigating risk of infringement, many question the value of investing the effort of using this exception for online instruction.

Section 107: Fair use is an additional specific exception (Step 4) to the exclusive rights of copyright holders enumerated in Section 106 (Step 1). The fair use exception lists uses “such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” to be non-infringing. The words “such as” would indicate that this list is illustrative, not exhaustive.

Unlike most of the other exceptions that present their required conditions in a checklist-like fashion, determining whether a use of a copyrighted work is a fair use in Section 107 requires a careful analysis of several weighted factors. The determination is made using the following four factors applied to the specific circumstances of your use case. Confidence of a non-infringing use is strengthened if the balance of the four factors favors fair use.

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. This factor looks at the purpose the work will be put. Purposes that favor fair use have been alluded to above. A fair use case is strengthened if the use is not for profit, or if for educational purposes. It is sometimes assumed that all educational uses are fair use. However, this is not true! You should be able to articulate your specific educational purpose. The use should usually (though not always) be transformative. That is, is the original work you are using going to be changed, used in a new way, or given a new meaning?
2. The nature of the copyrighted work. A fair use case is strengthened if the work you are using has been published as opposed to unpublished, and if its nature is more factual as opposed to creative. But these characteristics are not hard and fast if the use can be demonstrated to be transformative (1), or if the overall balance of the factors leans toward fair use.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. A fair use case is strengthened if you use the minimal proportional amount of the original work necessary to illustrate your point. The larger the amount used the greater potential impact on the market (4), which weakens your fair use case. Your case may also be weakened if you use the substantial portion (the “heart”) of the work.
4. The effect of the use upon the potential market for or value of the copyrighted work. A fair use case is strengthened if your use causes little or no market harm. It might be commendable to want to save your students some money by scanning and posting a PDF of the course textbook to the course management system. However, the author(s) or publisher of the textbook is unlikely to appreciate this loss of revenue! If, on the other hand, the textbook is accessible from an institutionally subscribed online database for which at least a single user license (unlimited simultaneous users is best) has been granted (Step 3), and you provide your students with a permalink to the textbook (as opposed to downloading and distributing the PDF on the CMS), the issue of market harm is unlikely to be raised.

   In this specific example the issue of “potential markets” is also addressed in a manner, as it happens, beneficial to the user (because the user’s institution subscribes to the database that includes the needed textbook). In addition to revenue gained through selling the textbook directly to students from the university bookstore or online book seller, the author(s)/publisher has taken advantage of another market—gleaning licensing revenue by negotiating access to the textbook with the database vendor.

• Fair Use Index. Tracks a variety of judicial decisions to help persons better understand the types of uses courts have previously determined to be fair—or not fair.

As a first step, it is logical to assume that the copyright holder is the author/creator of the original work. However, because copyrights are (still) commonly transferred by authors/creators to publishers (Step 2), or the work may be “made for hire” (Step 2) you would then need to contact the publisher or the employer for permission. Contact information for an author might be found online. Rights holders for non-textual works such as photographs, works of art, songs and music, films, etc. might also often be located by searching for the artist online. If the author/creator has died, copyrights will likely have passed to his or her estate. Publisher websites frequently include information for requesting permissions. Collective rights organizations (Step 3) also manage permissions. Online tools such as WATCH: Writers, Artists, and Their Copyright Holders may also assist you in locating the rights holder.

Seeking permission from the rights holder may not be possible, either because the holder is not known (creating what is called an “orphan work”) or because they do not respond to your request (even after repeated attempts). The inability to secure permission does not allow you to go ahead and use a copyrighted work. However, it may prompt you to re-consider your earlier fair use analysis (more on this below).

Commonly, when requesting permission to use a copyrighted work, you are not asking for the rights holder to transfer their copyright to you. Rather, you are requesting a non-exclusive license from them in order to use the work in a certain specific way. Licenses were discussed in Step 3, except there you were looking for a license that gave you prior permission to use the work.

George Mason University Libraries provides an excellent procedure for requesting permission (excerpted here). Permission can be requested in an email or a written letter and should include the following:

• Introduce yourself. Tell who you are and perhaps include a brief summary of your credentials.
• Be as specific as possible when you cite and describe the work you wish to use. If you plan to use the entire work, say so. If you need only part, give the details. You may need to be more detailed or include copies of the material, especially if you are using photographic images or sound or film clips.
• Tell how you plan to use the work. Specify whether your use is commercial or nonprofit, for classroom learning or distance education, for research and publication, etc. Remember, the permission you obtain is limited by its own terms.
• State how long you plan to use the work, whether one semester or indefinitely. Some owners may be wary of granting permission for extended periods of time or for dates far in the future, but if that is what you need, go ahead and ask.
• Include information about how and where the work will be used. Such uses may involve classroom copies, reserves, coursepacks, password protected online displays, etc. Include the exact or estimated number of copies that you wish to make or the number of uses intended.
• Tell why you are contacting that person or entity for permission. For example: “I am writing to you, because I believe your company acquired the company that originally published the book.” Another example: “I believe that you are the grandson of the original writer, and therefore may have inherited the copyright to the letters and diaries.”

This procedure highlights the need to give thoughtful attention to the details of your use case, which can also be helpfully applied in previous steps. When requesting, be polite, patient, and persistent. Assuming you have correctly located the rights holder, it may take several attempts to get a reply—or you may never receive a reply. You need to be prepared to be denied permission. Also, permission may be granted, but may entail a fee and/or other legal constraints. As noted in Step 3, permission constitutes a use license. You must decide whether you want to use the work under the stated terms of the license.

If after good faith attempts you are unable to identify the rights holder, or you do not receive a reply to your permission requests, you might reconsider your fair use analysis (Step 5). Though still involving risk, your overall analysis may be strengthened because the apparent absence of a person or entity to grant permission or collect a licensing fee would seem to argue against market harm (factor (4)).

Finding Rights Holders and Requesting Permissions

• The American Society of Composers, Authors and Publishers (ASCAP). Collective rights society representing hundreds of thousands of musicians and composers managing licensing for public music performances.
• Artists Rights Society. Represents the intellectual property rights of over 120,000 visual artists and their estates for seeking reproduction permission.
• FOB: Firms Out of Business. Provides information about printing and publishing firms, magazines, literary agencies and similar organizations which are no longer in existence. Where possible the entries in FOB identify successor organizations which might own any surviving rights.
• International Association of STM Publishers Permissions Guidelines. Lists many major STM publishers with re-use notification requirements and contact information.
• Motion Picture Licensing Corporation. Assists individuals and organizations to secure public performance licenses for movies, TV shows, and other content.
• Stanford University Libraries Copyright Renewals Database. Contains book renewal records (not original registrations) covering the period between 1923 and 1963, the time after which most books had entered the public domain (before 1923) and before January 1, 1964, when copyrights were renewed automatically.
• TinEye. Reverse image search for locating images posted online to assist in identification of rights holders.
• WATCH: Writers, Artists, and Their Copyright Holders. Names and addresses of copyright holders, or contact persons for authors and artists whose archives are housed in North America and the United Kingdom.

Open License and Public Domain Texts, Images, Audio, and Video

• Creative Commons Search. Search for images (photographs, illustrations, digitized artworks) made available for reuse under various Creative Commons licenses.
• Internet Archive. Digital library that provides free public access to collections of digitized materials, including websites, software applications/games, music, movies/videos, moving images, and public-domain books.
• Wikimedia Commons. Open media file repository of public domain and freely-licensed educational media content (images, sound and video clips).