Copyright and Fair Use

Copyright issues can be complex. If in doubt, it is best to consult with the Scholarly Communications Office at Emory University Copyright Resources.

U.S. copyright law is meant to promote progress by securing time-limited exclusive rights for creators. (Article 1, Section 8, Clause 8, US Constitution) In the U.S., copyright is automatic for original content that is in fixed forms. This means that if you write a book, write a play, compose music, create pantomime or choreography, create pictures, graphics, or sculptures, create a film or audio-visual product, create sound recordings, or design architecture, these works are copyrighted and you are not required to register your copyright with the U.S. Copyright Office. You can, of course, register a work with the Copyright Office. Having a copyright confers the following rights:

to reproduce
to create derivative works
to distribute copies or transfer ownership
to perform and/or to display the work publicly

Copyright law does, however, place limitations on these rights with the most common being Fair Use and Reproduction by Libraries and Archives. Copyright balances creator rights against the rights of the public to access, use, and build upon works so progress is made.

There are things that cannot be copyrighted. For example, facts cannot be copyrighted. Works like basic mathematics, alphabets, and recipes cannot be copyrighted. Additionally, ideas cannot be copyrighted. Copyright protects the expression of ideas, but not ideas themselves. Ideas, procedures, methods, processes, and systems also cannot be copyrighted, although some may be eligible for patents.

Working with Copyright

Working within the parameters of copyright law requires using judgment and knowledge of the basic rules and types of permissions and licenses available. The first step in using any material is to determine if it is copyrighted, and then to walk through the series of questions below to determine if you can use it. Whether an item is copyrighted may not be obvious and may take some research to verify. Understanding what is automatically copyrighted (listed above) can provide a starting point. Works that are registered with the U.S. government may be found at copyright.gov. Work that is registered is often more visible or high profile.

Text for the Copyright and Fair Use Infographic

Permissions and Licenses

Once you think work may be copyrighted, the next question to ask is whether you can get a license (permission) and what the requirements for the license are, or whether you can use an exemption (fair use).

Some copyrighted material is licensed by an entity for use by a particular population (e.g., Emory University purchases licenses for certain material to be used by faculty, learners, and staff), or a license may accompany works and have license information available with the work. Other works may offer to license for a price, like on a photo website.

Many more materials these days have Creative Commons licenses, chosen by the author or creator because they allow more options for use than copyrighted material. Creative Commons licenses have four elements: attribution, derivative works, share alike, and non-commercial (plus public domain) that create six licenses. Best practices for Creative Commons licenses are described here. The Creative Commons site has descriptions of each available license and provides information on how to attribute or cite a work with a Creative Commons license.

Adapted from Creative Commons.

The Public Domain

Works that are not copyrighted fall under the public domain and do not require the use of attribution, citations, or permission to use, and they can be modified by the user. These works include titles, names, short phrases, slogans, facts, news, work without originality, and "useful" works. Most work created by U.S. federal employees is in the public domain.

Public domain also covers works with copyrights that have expired and works where the creator failed to comply with any legal formalities required at the time of creation or after, allowing the work to enter the public domain. Works eligible for copyright protection are vested at the time of creation but there is a limit to the length of time they are protected. More detailed information about the public domain can be found here. Understanding what falls under the public domain and what does not requires research and can be complicated. Review the informational chart through the link provided above.

Fair Use

There are situations in which you can use a copyrighted work. In deciding whether the use of a work is fair use, the factors to consider are:

The purpose and character of the use
The nature of the work used
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect on the potential market or value of the work

Deciding if something is exempt from copyright laws is not always a distinct, bright line and involves judgment. There are a number of questions to ask when deciding whether to use a work. Make sure to consult with someone with more expertise when necessary and document decisions.

Fair-use-questions

Adapted and remixed from Cornell Libraries' Fair Use Checklist CC-BY Cornell University, remixed from “The Fair Use Checklist”, CC-BY Kenneth D. Crews (Columbia University) and Dwayne K. Buttler (University of Louisville)

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Resources

Emory University Copyright Resources: Scholarly Communications Office

Copyright can be complex, and you can make an appointment with Jody Bailey or Melanie Kowalski at the Scholarly Communications Office at Emory.

Cornell University: Copyright at Cornell Libraries: Copyright Term and the Public Domain